Preview
1 ROB BONTA
Attomey General of California
2 KRISTIN M . DAILY
Supervising Deputy Attorney General F!LEO/EMOORSED
3 JAMES F. CURRAN
Deputy Attorney General APR 2'? 2022 '
4 State Bar No. 142041
1300 I Street, Suite 125 F iVacOonaid
5 P.O. Box 944255 By: 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 Cglifornia Highway Patrol
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
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13
DAVID RIDGE, Case No. 34-2019-00265393
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Plaintiff, DECLARATION OF JAMES F. CURRAN
15 IN SUPPORT OF DEFENDANT
CALIFORNIA HIGHWAY PATROL'S
16 OPPOSITION TO MOTION TO
COMPEL FURTHER RESPONSES TO
17 THE CALIFORNIA HIGHWAY PATROL; SPECIAL INTERROGATORIES, SET
and DOES 1-100, inclusive, THREE
18
Defendants. Date: May 10, 2022
19 Time: 1:30 p.m.
Dept: 53 .
20 Judge: Hon. Richard K. Sueyoshi
Trial Date: March 6, 2023
21 Action Filed: September 23, 2019
22
23 I, James F. Curran, am an attorney licensed to practice law in all courts of the State of
24 California. I am a Deputy Attorney General and counsel of record for Defendant California
25 Highway Patrol (CHP) in this case. I have analyzed the pleadings and documents relevant to this
26 lawsuit and have engaged in "meet-and-confer" communications via email, U.S. mail, and
27 telephone, with Plaintiffs counsel, John Briscoe, of Mayall Hurley, PC, conceming two motions
28 to compel that Mr. Briscoe filed on behalf of Plaintiff David Ridge regarding the survey sent out
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
t #
1 to CHP officers by Officer Erik Mallory. The first motion concerned a notice of Mallory's
2 further deposition and a document demand therein. The second motion is the present motion to
3 compel further responses by CHP'to Plaintiffs Special Interrogatories, Set Three. I therefore
4 have personal knowledge of the matters described below, and could competently testify to. their ;
5 truth if called upon to do so.
6 1. Attached as Exhibit 1 is a tme and correct copy of an excerpt from the tentative rulings
7 issued on June 3, 2021, by Department 53 of this court, including, as Item 4, the tentative, now:
8 final, ruling on Plaintiff David Ridge's motion to compel answers at deposition of Matthew
9 Stover.
10 2. Attached as Exhibit 2 is a tme and correct copy of the Complaint for Damages that. ,
11 Plaintiff David Ridge filed to initiate this litigation.
12 3. I represented CHP at the first session of the deposition, taken via Zoom by Plaintiff s
13 counsel, John Briscoe, of CHP Officer Erik Mallory on December 15, 2021. Mallory participated
14 from a different location than my location during the Zoom deposition. At this deposition, „ ;
15 Mallory testified he had in his possession paper copies of responses to a survey he had
16 disseminated, with the help of a union representative, to a large number of CHP officers. Mallory
17 scanned and emailed to me pdf copies of the survey response forms after the conclusion of the
18 first, and, thus far, only, session of his deposition on December 15, 2021. Prior to receiving these
19 pdf copies from Mallory, my office had not received the survey response forms from CHP, and,
20 to the best of my knowledge, our points of contact for this case at CHP did not possess the survey
21 response forms. Copies of the survey response forms are attached as Exhibit 2 to the Declaration
22 of John Briscoe, filed by Plaintiff in support of the present motion. Those copies of the forms
23 have the responding officers' CHP identification (badge) numbers redacted pursuant to agreement
24 between the parties during the meet-and-confer process.
25 4. Attached as Exhibits 3 through 10, inclusive, are true and correct copies of email
26 strings between Mr. Briscoe and me or my secretary, Chris Irby. On December 29, 2021,1
27 emailed Mr. Briscoe, at 3:35 p.m., and informed him my office was redacting and readying for
28 production the survey result forms.that Mallory described during his deposition. (See Exh. 3, pp.
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
1 2-3.) At 3:45 p.m. on December 29, 2021, Mr. Briscoe emailed me and asked why the survey
2 responses should be redacted and to what extent. (See Exh. 3, pp. 2-3.) On January 4, 2022,1,
3 responded and notified Mr. Briscoe that the survey response forms included names, identification
4 numbers and statements attributed to CHP officers, and thus CHP was prohibited from disclosing
5 some or all of this information by the Information Practices Act (IPA) or the Peace Officerv:Bill of
6 Rights,. (See Exh. 3, pp. 1-2.) I also pointed out that Mr. Briscoe did not need any ofthe
7 respondents' names to argue that a certain number of respondents said "yes" to one. or rnore ^ ,
8 survey questions. (Ibid.) On January 5, 2022, Mr. Briscoe responded via email at 12:34 p.m.r
9 and, among other,points, argued the officers who filled out the survey response forms had waived
10 any privacy protection of their rnedical condition (the survey asked the officers abqut \yhether
11 they had experienced "back stress from wearing the duty belt" on which patrol officers hang their
12 weapons and other equipment). (See Exh. 3, top of p. 1) In this email, Mr. Briscoe also argued
13 that .siibdivision (k) of section 1798.24 of the Code of Civil Procedure contained an exception, for
14 "compulsory legal process," to the IPA's restrictions on disclosure of state employees' personal
15 information or statements made by those employees. (Ibid.) _
16 5. In his email of 12:34 p.m. on January 5, 2022, Mr. Briscoe proposed a "notiee,process"
17 (see Exhibit 3, p. 1) by which his office would retain a third-party administrator (TPA) to send a
18 notice to all of the survey respondents explaining the nature of the case and explaining that the, .,.
19 respondents had the right to object to disclosure of their names and contact information.; Mr.
20 Briscoe proposed that the parties split the TPA's costs, and, to the extent written objections were
21 not received by the TPA from the officers who responded to the survey within 30 days, CHP
22 would produce unredacted survey response forms, while CHP could redact the names and
23 identification numbers of any respondent who objected to disclosure of his or her information.
24 On January 12, 2022, at 10:33 a.m., I responded (see Exh. 4, p. 6,) and pointed out that, during a
25 phone call on January 6, Mr. Briscoe and I had agreed to table the dispute over redaction of
26 officers' names and identification numbers while the parties tried to settle the case. The parties
27 were not able to settle the case. On February 3, 2022,1 sent an email at 4:27 p.m. to Mr. Briscoe
28 (see Exh. 4, p. 2) pointing out that the survey responses were not CHP's documents, and asking
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
1 Mr., Briscoe if he had legal authority for the proposition that a document demand in a deposition
2 notice constituted "compulsory legal process" for purposes of the IPA's exception clause in Code
3 of Civil Procedure section 1798.24. I informed Mr. Briscoe that we had not found any authority
4 for that proposition and therefore we could not run the risk of violating the IPA and subjecting
5 CHP to being sued for violating it (the IPA provides for a private right of action by any state
6 employee who believes his or her employer harmed the employee by violating the IPA) by
7 releasing the survey response forms with the responding officers' names and identification
8 numbers visible. Six minutes later, at 4:33 p.m. on February 3, 2022, Mr. Briscoe responded via
9 email: "No need to hold the date [for Mallory's continued deposition]. You've made your
10 /705//IOW c/eo/'flwrf we M'///y7/e OM/* wo/Zo/i." (See Exh. 4, p. 2 [emphasis added].)
11 6. On February 9, 2022, Mr. Briscoe sent his email of 4:12 p.m., arguing that Code of Civil
12 Procedure section 1798.76, part of the IPA, contains an exception for discovery in civil litigation .,
13 that would allow CHP to release and disclose the officers' narnes, identification nurnbers, and ,
14 responses to the questions asked in the Mallory survey. .(See Exh. 4, pp. 1-2.) Later that day;.
15 (Feb. 9, 2022), 1 responded via email at 5:44 p.m. and told Mr. Briscoe I would discuss; his
16 contention with the client. (See Exh. 4, p. 1)
17 7. On February 15, 2022,1 emailed Mr. Briscoe at 4:16 p.m. (see Exh. 5, p. 2) and
18 informed him CHP was interested in the TPA procedure he has suggested, and asked that he
19 obtain cost estimates from two TPA's. I informed him CHP would require, as conditions, that the
20 unredacted survey response forms would be designated "ATTORNEY'S EYES ONLY," and
21 CHP would require that Plaintiff agree to refrain from filing a motion to compel production of the
22 unredacted survey forms. (Ibid.) 1 pointed out that CHP did not want to pay half of the TPA's
23 costs and later have to defend a motion to compel if only a small number of respondents granted
24 permission for disclosure of their information. At 4:31 that day (Feb. 15, 2022), Mr. Briscoe - '
25 emailed me and stated Plaintiff was not amenable to CHP's proposal that included the two
26 conditions, labeling those conditions "onerous." (See Exh. 5, p. 2, top email.) On February 17,
27 2022,1 emailed Mr. Briscoe at 1:20 p.m. (see Exh. 5, p. 1) and pointed out the IPA provides for
28 redactions. Later on the afternoon of February 17, 2022, Mr. Briscoe sent his email of 1:26 p.m.
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
1 (see Exh. 5, p 1, top email) and again argued Code of Civil Procedure section 1798.76 permits
2 disclosure of names, addresses, and statements of public employees any time the parties are
3 involved in civil litigation.
4 8. On February 22, 2022, Plaintiff filed his Motion to Compel Further Deposition of Erik
5 Mallory and for Sanctions, with a hearing date of April 7, 2022. On March 9, 2022,1 sent Mr.
,6 Briscoe my email of 1:59 p.m. (see Exh. 7, p. 3, bottom email) stating CHP's offer to produce the
7 Mallory survey responses in unredacted form subject to the protective order already on file in this
8 litigation if Plaintiff would withdraw the motion to compel the further deposition of Mallory. Mr.
9 Briscoe responded at 2:29 p.m. on March 9 and stated he did not see why the documents should
10 be marked "confidential." He stated Plaintiff would withdraw the motion if CHP produced the
11 forms without any redaction of confidential designation. I responded that day (March 9, 2022) at
12 3:39 p.m. (see Exh. 7 at pp. 2-3) and stated the forms needed to be marked "Confidential -
13 Subject to Protective Order" so the survey forms would not be used outside.this litigation. At.
14 3:44 p.m., Mr. Briscoe responded and stated Plaintiff would stipulate not to use the survey
15 response forms outside this litigation and that CHP may redact the CHP identification numbers
16 from the forms. I responded at 4:08 p.m'. on March 9, 2022 (see Exh. 7, p. 2, top email) and again
17 requested that Plaintiff, if he was willing to refrain from using the forms outside this litigation,
18 should be fine with CHP designating the forms as "Confidential - Subject to Protective Order."
19 Mr. Briscoe responded at 4:18 p.m. that he did not need a formal stipulation to stick to his word.
20 (See Exh. 7 p. 1, bottom email.) I responded on March 13, 2022 at 2:00 p.m. (see Exh. 7, p. 1,
21 top email) that CHP had agreed that Plaintiff need not file the forms under seal in future filings,
22 as long as the Confidential - Subject to Protective Order remained on the forms. I informed Mr.'
23 Briscoe that we had the forms, with only the identification numbers redacted, ready to produce.
24 9. On March 14, 2022, Mr. Briscoe emailed me at 2:16 p.m. and stated Plaintiff would
25 drop the motion to compel further deposition of Mallory once the documents were produced.
26 (See Exh. 8, p. 1, top email.)
27 10. On February 28, 2022, Plaintiff served his Special Interrogatories, Set Three. (5ee
28 Proof of Service, Exhibit 3 to the Declaration of John Briscoe filed in support of the present
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
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1 motion, final page.) CHP served its responses to those interrogatories on March 29, 2022. (See
2 Proof of Service, Exh. 4 to Briscoe Dec, final page;) On March 29, 2022, at 11:07 a.m., Mr.
3 Briscoe sent me an email requesting a telephone call to discuss CHP's responses to those
4 interrogatories. (See Exh. 9, pp. 3-4.) Mr. Briscoe and I spoke via telephone on March 31, 2022,
5 about CHP's responses. On April 5, 2022,1 sent Mr. Briscoe an email at 5:38 p.m. informing
6 him that, with respect to Special Interrogatory No. 9,' CHP was in the process of determining if
7 there was any record of any CHP officer "telling" the Uniform Committee that external vests
8 should be approved for patrol officers. (See Exh. 9, pp. 2-3.) I informed Mr. Briscoe that if there
9 was any such record, CHP would serve a further response to Interrogatory No. 9 with the work
10 contact information of any officers who made such a statement to the Uniform Committee. 1 have
11 contacted, since writing my email of April 5 at 5:38 p.m. to Mr. Briscoe,the appropriate CHP
12 personnel about whether such a record exists, and just received the final response for which I was
13 waiting on April 25, 2022. I am now informed and believe there is no such record of any CHP
14 officer making the specified statement to the Uniform Committee. Therefore, CHP will serve, as
15 soon as possible, a further response to Interrogatory No. 9 stating this and stating CHP has made a
16 "reasonable and good faith effort to obtain the information by inquiry to" the appropriate persons
17 (Code Civ. Proc, § 2030.220, subd. (c)), without waiving CHP's objections to this interrogatory
18 (Code Civ. Proc, § 2030.240, subd. (a)). In this email of April 5 at 5:38 p.m., I also informed
19 Mr. Briscoe that CHP would not disclose, in response to Special Interrogatory No. 10, the home
20 addresses, aliases, home telephone numbers and personal email addresses for the hundreds of
21 officers who responded to the Mallory survey. (See Exh. 9, at pp. 2-3.) I pointed out that Penal
22 Code section 832.7 permits public agencies to redact records even where a judge orders
23 information from those records disclosed pursuant to a Pitchess motion.^ I also pointed out that
24 even non-peace-officer employers generally do not provide home addresses and telephone
25 numbers for their personnel, even if those personnel are witnesses. 1 concluded my email by
26 ' Special Interrogatory No. 9 reads as follows: "IDENTIFY each officer of
DEFENDANT who, in the past twenty years, has told DEFENDANT'S Uniform Committee that
27 external load-bearing vests should be an approved uniform item for DEFENDANT'S patrol
officers."
28 2 Pitchess V. Superior Court (Echeveria) (1974) 11 Cal.3d 897.
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
1 pointing out that it is not reasonable to expect a law enforcement agency to provide the home
2 addresses, personal phone numbers, and personal email addresses of its patrol officers just
3 because they might have rendered a lay opinion on a uniform policy proposal. The next day,
4 Mr. Briscoe sent his email of April 6, 2022 at 8:07 a.m. (see Exh. 9, p. 2), stating he was
5 "disappointed" that CHP and the undersigned were "going to great lengths to conceal the names
6 and contact information for percipient witnesses, inflagrantviolation of the text ofthe Civil
7 Discovery Act." I responded to this email at 3:26 p.m. on April 6,2022 (see Exh. 9, pp. 1-2), and
8 offered to provide the survey response forms without the CHP identification numbers redacted
9 and to provide the work email addresses, work addresses and work telephone numbers of up to 20
10 officers who responded to the Mallory survey. I further offered that the parties could meet and
11 confer further if Mr. Briscoe decided he needed more than 20 names. On April 6, 2022 at 4:29
12 p.m., Mr. Briscoe sent me an email (see Exh. 9, p. 1) stating, among other things, that he would
13 not put personal contact information of patrolmen in the public record. Before I was able to
14 respond. Plaintiff filed the present motion on April 7, 2022.
15 11. Attached as Exhibit 11 is a true and correct excerpt from the transcript of the percipient
16 witness deposition of Captain Matthew Stover, who was Plaintiffs second-level supervisor
17 during the events giving rise to this case.
18 12. Attached as Exhibit 12 is a true and correct copy, with redactions, of the Disability
19 Retirement Approval Letter issued by CalPERS to Plaintiff on January 3, 2022.
20 13. Attached as Exhibit 13 is a true and correct copy, with redactions, of Plaintiff s
21 Application for Reinstatement from Disability Retirement, signed by Plaintiff on October 30,
22 2021.
23 14. Attached as Exhibit 14 is a true and correct copy of a memorandum, with redactions,
24 informing the recipient that Plaintiff was to report to CHP's Academy for a requalification
25 training course on February 14, 2022.
26 15. Attached as Exhibit 15 is a true and correct copy of a June 25, 2014 memorandum
27 setting forth the minutes of the Second Quarter 2014 meeting of CHP's Uniform Committee.
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
1 16. Attached as Exhibit 16 is a true and correct copy of an April 7, 2017 memorandum
2 setting forth the minutes of the First Quarter 2017 meeting of CHP's Uniform Committee.
3 17. Attached as Exhibit 17 is a true and correct copy of a July 18, 2017 memorandum
4 setting forth the minutes of the Second Quarter 2017 meeting of CHP's Uniform Committee. I
5 am informed and believe, after review of the these and several other sets of the Committee's
6 meeting minutes, that the Uniform Committee has not evaluated any other ELBV prototype since
7 Officer Mallory presented his in March 2017.
8 18. I am informed and believe Plaintiff (a) has completed the requalification course, (b) is
9 presently working full duty (not limited or "light duty") as a patrol officer out of CHP's area
10 office in Santa Ana, (c) is performing patrol officer duties while wearing the regular "duty belt,"
11 or Sam Browne belt, and (d) has made no request for reasonable accommodation of his disability
12 since he applied to be reinstated in October 2020 and retumed to work with CHP.
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
1 19. I have spent in excess of five (5) hours reviewing, and preparing CHP's opposition to,
2 this motion, including this declaration and the exhibits attached hereto. The Employment and
3 Administrative Mandate Section'of the California Attorney General's Office, to which I am
4 assigned, charges its client agencies, including CHP, $220 per hour for legal services. I
5 respectfully submit this is a reasonable and less than customary charge for these services.
6 anticipate I will spend approximately two (2) additional hours reviewing Plaintiffs reply to
7 CHP's opposition and preparing for and attending the hearing on this motion. Therefore,
8 anticipate CHP will incur attorney fees in excess of $1,540 for the review of this motion and
9 Plaintiffs reply papers, for preparation of this opposition, my declaration and proposed order, and
10 for oral argument.
11 I declare under penalty of perjury under the laws of the State of Califomia that the
12 foregoing is true and correct. Executed on April 27, 2022 at Sacramento, California.
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Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393)
EXHIBIT 1
NOTICE:
To request limited oral argument on any matter on this calendar, you must call the Court at (916)
874-7858 (Department 53) by 4:00 p.m. the court day before this hearing and advise opposing counsel,
if no call is made, the tentative ruling becomes the order of the court. Local Rule 1.06.
Until further notice, NO IN-PERSON APPEARANCES WILL BE PERMITTED. All court users are required
to appear via Zoom [which includes telephonic and video options]. NO COURTCALL APPEARANCES
WILL BE ACCEPTED. The Department 53 Zoom link is http://saccourt.zoom.us/my/dept53.54a . The
Department 53 Zoom ID Is: 841 204 6267. To appear on Zoom telephonically, call (888) 475-4499 or (877)
853-5257 (toll-free) and enter the Zoom ID referenced above.
Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar
must comply with the following procedure.
To request oral argument, on any matter on this calendar, you must call the Department 53 clerk at
(916) 874-7858 by 4:00 p.m. the court day before the hearing and advice opposing counsel. At the time
of requesting oral argument, the requesting party shall leave a voice mall message to advise the clerk
that it has notified the opposing party of the following: a) its intention to appear and b) that opposing
party may appear via Zoom using the Zoom ID indicated above, if no request for oral argument is made,
the tentative ruling becomes the final order of the Court. Local Rule 1.06.
The hearings will also be live-streamed on the Court's YouTube page for the benefit of the public.
Although the hearings will be live-streamed on the Court's YouTube page, the broadcast will not be
saved/preserved. Thus, if any party wishes to preserve the hearing for future use, a court reporter will
be required.
During the COVID-19 emergency, the Court will supply a court reporter upon request. Any party
desiring a court reporter shall so advise the clerk upon request for oral argument. Unless a fee waiver
has been granted, the reporter's fee must be paid to the Court prior to the hearing. Local Rule 1.12 and
Government Code § 68086.
Department 53
Superior Court of California
813 Sixth Street, 2nd Floor
, Raymond M. Cadel, Judge
Staff, Cierk
P. Lopez, Bailiff
Thursday, June 03, 2021,1:30 PIVI
Item 1 2016-00195215-CU-MM
Jason Wright vs. Mercy General Hospital
Nature of Proceeding: Motion to Compel - Other - Civil Law and Motion
Filed By:
This matter is dropped from calendar.
Item 2 2016-00199655-CU-NP
Jesus Sandoval vs. Sacramento Post-Acute
Nature of Proceeding: Motion to File Second Amended Complaint
Filed By: Laird, Sean R. ; '
Plaintiff Jesus Sandoval, by and through his successor-in-interest Anna Sandoval's
unopposed motion for leave to file a second amended complaint is granted.
In this elder abuse action Plaintiff seeks leave to a file a second amended complaint to
specifically add the names of Doe Defendants to the complaint and to make otiier
spelling changes and delete repetitive paragraphs. Leave to amend is proper.
The motion is granted.
Plaintiff shall file and serve the proposed second amended complaint attached as
Exhibit 2 to Plaintiffs counsel's declaration no later than June 14, 2021. The Court will
not deem the proposed pleading filed and served.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item 3 2016-00204361-CU-WT
Linda Larkin vs. The Permanente Medical Group, Inc.
Nature of Proceeding: Motion for Summary Judgment and/or Adjudication
Filed By: Wilbur, Michael E.
Defendants The Permanente Medical Group and Kaiser Foundation Hospital's motion
for summary judgment is dropped as moot. An unconditional notice of settlement of
the entire case was filed on May 14, 2021 and Plaintiffs request for dismissal was
entered on May 20, 2021.
Item 4 2019-00265393-CU-OE
David Ridge vs. The California hiighway Patrol
Nature of Proceeding: Motion to Compel Answers at Deposition
Filed By: Briscoe, John P.
Plaintiff David Ridge's motion to compel "answers at deposition of Matthew Stover"
denied.
In this FEHA disability discrimination action Plaintiff alleges that the California Highway
Patrol ("CHP" or "Defendant") denied him a reasonable accommodation for his
physical disability, a bacl< injury, which forced him into early retirement. He alleges
that his disability could have been accommodated by allowing him to wear his sidearm
and equipment on a weight-bearing vest instead of the traditional leather belt.
Plaintiff took the deposition of Captain Matthew Stover ("Cpt. Stover"), his commander.
At the deposition, Plaintiffs counsel asked Cpt. Stover the following question a number
of times: "Can you think of any reason why it would not be reasonable for someone in
Officer Ridge's position to wear the weight-bearing vest?" (Briscoe Decl. Exh. B p.
35:17-19.) Plaintiff argues that Cpt Stover provided evasive answers and that while
the question was pending, CHP's counsel left with Cpt. Stover and after they returned,
CHP's counsel's interposed improper objections and Cpt. Stover continued to evade
the question. Cpt. Stover provided the following answers to Plaintiffs counsel's
attempts to ask the question at issue: "Well, one, I don't make that decision and, two, I
think there is a device that was approved for him to wear." "I don't have an opinion
and I don't make those decisions." "I don't-l don't have an opinion on that" (Id. Exh. B
pp. 35:21-41:3.) Plaintiff now moves to compel Cpt Stover to answer the question at
issue. i i ;
"If a deponent fails to answer any question or to produce any document, electronically
stored information, or tangible thing under the deponent's control that is specified in
the deposition notice or a deposition subpoena, the party seeking discovery may move
for any order compelling that answer or production." (CCP § 2025.480(a).)
Plaintiff argues that the question posed is relevant to the issue of whether the vest was
a reasonable accommodation and that Cpt. Stover must be ordered to answer the
question.
In opposition, CHP argues that Cpt. Stover answered the question and that CHP's
counsel never instructed him not to answer. To that end, CHP argues that Cpt. Stover
simply made clear and numerous times that he had no opinion on whether it would
have been reasonable to allow Plaintiff to wear the subject vest. As seen froni the
deposition testimony highlighted by CHP in opposition, each time Plaintiffs counsel
sought to ask the subject question, or a version of it, CHP's counsel objected on the
basis that it called for improper opinion testimony/legal conclusion and also asked
multiple times for clarification if Plaintiffs counsel was using "reasonable" to refer to
"reasonable accommodation" under the applicable FEHA statue. (Curran Decl. Exh. A
p. 34:4-37:25.) Plaintiffs counsel did not clarify the term "reasonable." CHP's
counsel announced that a break would be taken and after the break Plaintiffs counsel
again asked the question and CHP's counsel interposed similar objections, though
never instructed Cpt. Stover not to answer.
Here, the Court finds that Cpt. Stover answered the question posed to him at the
deposition and did not refuse to answer. Rather, Plaintiff simply does not like the
answer provided. That is, while Plaintiff seeks to force Cpt. Stover to answer the
question "Can you think of any reason why it would not be reasonable for someone in
Officer Ridge's position to wear the weight-bearing vest?" with a yes or no, Cpt. Stover
answered that he does not make those decisions and that he has no opinion on that
issue. In fact, Plaintiffs counsel indicated that he was "asking for the opinion of a
seasoned officer ofthe CHP." (Curran Decl. Exh. A. pp. 36:24-37:3.) Cpt. Stover
answered that he has no such opinion. CHP's counsel never instructed Cpt. Stover
not to answer the question and in fact, Plaintiffs counsel asked the question in various
forms and each time Cpt. Stover provided a response as seen above, just not a
response that Plaintiff likes. The Court simply cannot compel Cpt. Stover to provide a
different answer. Despite Plaintiffs vigorous arguments to the contrary, this is not a
scenario where a deponent has refused to answer a question. On this basis alone, the
motion is denied.
Given the above, the Court need not resolve CHP's alternate argument, that is, that
the line of questioning at issue sought to elicit an improper lay opinion from Cpt. Stover
as to whether the weight-bearing vest would be a reasonable accommodation. The
Court does note, however, that CHP is generally correct that a lay witness's opinion is
limited to an opinion that is "(a) Rationally based on the perception of the witness; and
(b) Helpful to a clear understanding of his testimony." (Evid. Code § 800.) A case
neither party cited provides a good illustration ofthis point. "Opinion testimony ofa lay
witness may be particularly helpful when the matters observed by the witness may be
too complex or subtle to enable the witness to accurately convey them without
resorting to the use of conclusory descriptions." {Osbom v. Mission Ready Mix (1990)
224 Cal.App.3d 104, 112-113.) Thus, a lay witness may properly offer an opinion that
an individual was "drunk", that people were "angry", that an impact as strong enough to
jar a passenger from a seat, or that a person was "trying to break up a fight:" (Id. at
113.) However, a lay witness may not, for example, in a premises liability case, offer
an opinion as to an ultimate issue of fact to be decided by the jury, for example,
whether a condition on property was reasonable, (/of.) Such an opinion from a lay
witness would not be helpful to an understanding of the witness' testimony and would
"invade[ ] the province of the jury, which was to determine the reasonableness of both
parties' conduct" {Id. at 114.) The question ofthe reasonableness of an
accommodation is a question for the jury. {Prilliman v. United Air lines, Inc. (1997) 53
Cal.App.4*^ 935, 954.)
i ' • • j. I
An opinion by Cpt. Stover, a lay witness, regarding whether.,weight-bearing vest is or is
not a reasonable accommodation could well be found to invade the province of the jury
which is tasked to determine whether an accommodation is or is not reasonable.
Though, as Plaintiff correctly notes in reply, admissibility is not the test for discovery.
He argues that this is not a motion in lirhine and Cpt. Stover could testify as to his
observations regarding the subject vest and how it could be unsafe, which could lead
to the discovery of admissible evidence, including testimony that could ultimately
render Cpt. Stover's opinion admissible. The Court agrees that even a finding that the
testimony regarding an opinion as to whether the vest was a reasonable
accommodation would not be admissible at trial would not be a basis to deny the
motion. But, this motion was only premised on seeking to compel Cpt. Stover to
answer a question as to whether he had an opinion if the subject vest was a
reasonable accommodation. He did not have such an opinion and the Court cannot
compel him to have one. The Court found that Cpt. Stover in fact answered the ' i
question at issue on this motion, though not to Plaintiffs liking. The motion was not
premised on seeking to compel Cpt. Stover to answer questions regarding his
observations ofthe vest, for example whether he had seen it used, etc. Those
questions are not before the Court on this motion. There is no reason they could not
have been asked at Cpt. Stover's deposition.
The motion is denied.
Both parties' requests for sanctions are denied.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item 5 2019-00268273-CU-BC
Performance Automotive Group vs. Emergency Vehicle Outfitter
Nature of Proceeding: Motion to Enforce Settlement
Filed By: Costa, Daniel P.
EXHIBIT 2
Superior Cau,:'i i>S" i';;s\]ifirx^ir^
1 MAYALL HURLEY P.C.
NICHOLAS F. SCARDIGLI (SBN: 249947)
2 nscardigii@mayaIla>v.coni
3 JOHN P. BRISCOE (SBN: 273690)
jbnscoe(@mayallaw.com
4 RACHAEL ALLGAIER (SBN: 318664)
rallgaicr(@mayaUaw.com
5 2453 Grand Canal Boulevard
Stockton, California 95207-8253
6 Telephone: (209) 477-3833
7 Facsimile: (209)473-4818
8 Attorneys for Plaintiff David Ridge
9 SUPERIOR COURT OF THE STATE OF CALIFORNU
10
IN AND FOR THE COUNTY OF SACRAMENTO
11
DAVID RIDGE, an individual, Case No.:
12
Plaintiff, COMPLAINT FOR DAMAGES
13
14 vs. 1. DISABILITY DISCRIMINATION
2. FAILURE TO ACCOMMODATE
15 THE CALIFORNIA HIGHWAY PATROL; 3. FAILURE TO ENGAGE IN THE
and DOES 1-100, Inclusive, INTERACTIVE PROCESS
16 4. RETALIATION FOR REQUESTING
Defendants. ACCOMMODATION
17
5. FAILURE TO PREVENT DISCRIMINATION
18 AND RETALIATION
19 JURY TRIAL DEMANDED
20
21 Plaintiff David Ridge brings this action against the Califomia Highway Patrol; and Does
22 through 100, for violarions of the Fair Employment and Housing Act (Gov, Code, § 12900 et.
23 seq).
24 PARTIES
25 1. David Ridge ("Ridge" or "Plaintiff) is an individual and was an "employee" as
26 defined by the Fair Employment and Housing Act.
27
28
Complaint for Damages
Page 1 of 7 .
1 2. The California Highway Pati'ol ("CHP") is a state law enforcement agency of the
2 State of California and, at all times relevant herein, was an "employer" as defined by the Fair
3 Employment and Housing Act.
4 3. "CHP" and Does 1-100 are collectively refeaed to as Defendants.
5 4. Plaintiff is not aware ofthe true names and caplacities ofthe Defendants sued herem
6 as Does 1 through 100, whether individual, corporate, associate, or otherwise and therefore sues
7 such Defendants by theseficridousnames. Plaintiff will amend this Complaint to allege theiji- true
8 names and capacities when ascertained. Plaintiff is informed and believes, and on that basis
9 alleges, that each of thefictitiouslynamed Defendants is responsible in some manner for the
10 occurrences herein alleged and that Plaintiffs injuries and damages herein alleged were legally
11 caused by such Defendants. Unless othei-wise indicated, each Defendant was acting witiiin the
12 course and scope of said agency and/or employment, with the knowledge and/or consent of said co-
13 Defendant.
14 5. Plaintiff is informed and believes and thereupon alleges that at all times rhentioned
15 herein, each of the Defendants, including each Doe Defendant, was acting as the agent, servant,
16 employee, partner and/or joint venturer of and was acting in concert with each of tlie remaining
17 Defendants, uicluding each Doe Defendant, ui doing the things herein alleged, while at all times
18 acting within the course and scope of such agency, service, employment partnership, joiiit venture
19 and/or concert of action. Each Defendant, in doing the acts alleged herein, was acting both
20 individually and within the course and scope of such agency and/or employment, with the
21 knowledge and/or consent of tlie remaining Defendants.
.22 JURISDICTION AND VENUE
23 6. Venue is proper in this Court because the records relevant to tlie unlawfijl practices
24 alleged herein are maintained and administered in Sacramento County. (See Gov, Code, § 1.2965,
25 subd. (a).) Plaintiff hereby demands a jury trial.
26 ///
27 W
28
Complaint for Damages
Page 2 of?
1 GENERAL ALLEGATIONS
2 7. Ridge was Wred by CHP in 1995, and after completing training was placed oh duty
3 as a patrol officer.
4 8. In 2015, Ridge sustained a back injury wliile on the job. Due to the back injury, he
5 was placed on limited duty—relegating him to a desk job—which does not allow for any oveitune.
6 Thus, Ridge began to lose wages.
7 9. Ridge wishes to return to Ml duty, to be placed back on'palTol, and for the
8 opportunity to work overtime again,
9 10. On or around April 5, 2019, Ridge submitted a request for reasonable
10 accommodation to his supervisor, Sergeant John Mueller, requesting that he be permitted to retum
11 to full duty. Specifically, Ridge requested that he be permitted to wear a vest carrier instead of the
12 belt carrier that most patrol officers wear to cairy their equipment. This vest canier would allow
13 Ridge to retum to full duty as tlie weight of his equipment would be more evenly distributed than if
14 he were wearing the standard belt carrier, and would not place a strain on his back,
15 11. At this time, both Sgt, Mueller and Lieutenant Matt Stover (Ridge's commander)
16 informed Ridge that the request would never be approved because WaiTen Stanley, the
17 Commissioner of CHP, stated that he did not want to see patrol officers wearing such vest carriers,
18 as the belt carriere are more "traditional".
19 12. While the vest carriers are not traditionally worn by .patrol officers,, they, are readily
20 dvailable to CPIP, as other units within CHP regulariy wear them. Pemiitting Ridge to wear a vest
21 canrier would not constitute an imdue hardship for CHP, pose a health or safetyriskto Ridge or
22 others, or interfere with CHP operations in any way.
23 13. On or around April 23,2019, Ridge received a memorandumfi-omLt. Stover stating
24 that Ridge's "reasonable accommodation request" had been received, and that the interactive
25 process needed to continue with the Iiyury & Illness Case Management Unit.
26 14. On or around May 2, 2019, Ridge obtained a note from his medical provider in
27 support of his request for reasonable accommodation, and submitted it to CHP.
28
Complaint for Damages
Page 3 of 7
1 15. On or around May 6, 2019, Sgt. Mueller retumed the request for reasonable
2 accommodation with no explanation,
3 16. On or around June 21, 2019, Ridge spoke with Sgt. Mueller and inquired as to the
4 status of his request for reasonable accommodation. Sgt. Mueller began to pressure Ridge, stating
5 that he needed to be "honest" with his doctors and tell them that he cannot peribrm the duties of a
6 patrol officer. Ridge responded, accurately, that he could perfoim those duties, with reasonable
7 accommodation. Nonetheless, Sgt. Mueller told Ridge that CHP v/as "fast-tracking" him to
8 retirement.
9 17. To date, Ridge has not been permitted to weai- the vest carrier, has not been offered
10 any other reasonable accommodation, and CHP has wholly failed to engage in a tunely, meaningfijl
11 interactive process so as to detennine reasonable accommodations. Ridge is infomed and
12 beUeves, and therefore alleges, that under CHP policies, if he is not pennitted to return to full duty,
13 he will be forced to retire in April 2020. Ridge has no immediate plans to retne and, as CHP
14 knows, is and has been ready, wilting, and able to retum to fully duty with reasonable
15 accommodation since April 2019.
16 18. On July 2,2019, Ridge filed charges with the California Department of Fair
17 Employment and Housing based on the aforementioned unlawfiil conduct and was issued a right-
18 to-sue notice that same day.
19 19. Tlie foregoing list ofmisconduct is a partial list only and set forth by way of
20 example.
21
FIRST CAUSE OF ACTION
22 DISABILITY DISCRIMINATION
(Gov. Code, § 12940, subd. (a)) ,
23 Against Defendants
24 20. Plaintiffhereby realleges and incorporates by reference each and every allegation
25 set forth above as though fiilly set forth herein, except as said paragraphs are inconsistent with the
26 allegations of this cause of action.
27
28
Complaint for Damages
Page 4 of 7
21. FEHA prohibits an employer from discriminating against an employee based on
2 achial or perceived disability. (Gov. Code § 12940, subd, (a).)
3 22. Nevertheless, as set forth above, Defendants discriminated against Plaintiff based on
4 actual and perceived disability.
5 23. As a result of Defendants' conduct. Plaintiff has suffered damages.
6 24. Wherefore, Plaintiff seeks damages as set fortii below.
7 SECOND CAUSE OF ACTION
FAILURE TO ACCOMMODATE
8 (Gov. Code, § 12940, subd. (m))
9 Against Defendants
10 25. Plaintiff hereby realleges and incorporates by reference each and every allegation
11 set forth above as thoughfiillyset forth herein, except as said paragi-aphs are inconsistent with the
12 allegations ofthis cause of action. .
13 26. Tlie FEHA requires an employer to "make reasonable accommodation for the,
14 known physical or mental disability of an apphcant or employee." (Gov. Code, § 12940, subd.
15 (m).)
16 27. Nevertlieless, as set forth above. Defendants refused tp provide Plaintiff with
17 reasonable accommodation for a known disability.
18 28. As a result of Defendants' conduct, Plaintiff has suffered damages.
19 29. Wherefore, Plaintiff seeks damages as set forth below.
THIRD CAUSE OF ACTION
20 FAD-rURE TO ENGAGE IN INTERACTIVE PROCESS
(Gov. Code, § 12940, subd. (n))
21 Against Defendants
22
30. Plaintiffhereby realleges and incorporates by reference each and every allegation
23
set forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
24
allegations ofthis cause of action.
25
31. FEHA requires an employer "to engage in a thnely, good faith, interactive process
26
with the employee or applicant to determine effective reasonable accommodations, if any, in .
27
28
Complaint for Damages
Page 5 of7
1 response to a request for reasonable accommodation by an employee or applicant with a known
2 physical disability or known medical condition." Gov. Code § 12940(n).
3 32. Neveillieless, as set forth above, Defendants failed to participate in timely, good
4 faith, or interactive discussions with Plaintiff
5 33. As a result of Defendants' conduct, Plaintiff has suffered damages.
6 34. Wherefore, Plaintiff seeks damages as set forth'below.
7 FOURTH CAUSE OF ACTION
8 RETALIATION FOR REQUESTING ACCOMMODATION
(Gov. Code, § 12940, subd. (m)(2))
9 Against Defendants
10 35. Plaintiffhereby realleges and incorporates by reference each and every allegation
11 set forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
12 allegations of this cause of action,
13 36. The FEHA explicitiy prohibits an employerfi-omretaliating or otiierwise
14 discriminating against a person for requesting accommodation for'a disability, regaidless of
15 whether the request was granted. (Gov, Code, § 12940, subd. (m)(2).)
16 37. IMeverthelesa, as set forth above. Defendants unlawfully retaliated against Plaintiff
17 for requesting accommodation, in violation ofthe FEHA.
18 38. As a result of Defendant's conduct, Plaintiff lias suffered damages.
19 39. Wherefore, Plaintiff seeks damages as set forth below.
20 FIFTH CAUSE OF ACTION
FAILURE TO PREVENT DISCRIMINATION AND RETALIATION
21
(Gov. Code, § 12940, subd. GO)
22 Against Defendants
23 40. Plaintiff hereby realleges and incorporates by reference each and eveiy allegation
24 set forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
25 allegations of this cause of action.
26 41. The FEHA requires an employer to take all reasonable steps necessary to prevent
27 discrimination and retaliationfiromoccurring. (Gov. Code, § 12940, subd. (k).)
28
Complaint for Damages
Page 6 of?
1 42. , Nevertlieless, as set forth above, Defendants failed to prevent discrimination and
•I
2
retaliation against Plaintiff.
3
43. As a result of Defendants' conduct, Plahitiff has suffered damages.
4
44. Wherefore, Plamtiff seeks damages as set forth below.
5
PRAYER FOR RELIEF
6
WHEREFORE, Plaintiff prays judgment against Defendants as follows:
7
1. For compensatoiy, special, and general damages;
8
2. For injunctive relief;
9
3. For statutory attorneys' fees and costs, including but not limited to those availabl
Preview
1 ROB BONTA Attomey General of California 2 KRISTIN M . DAILY Supervising Deputy Attorney General F!LEO/EMOORSED 3 JAMES F. CURRAN Deputy Attorney General APR 2'? 2022 ' 4 State Bar No. 142041 1300 I Street, Suite 125 F iVacOonaid 5 P.O. Box 944255 By: 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 Cglifornia 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, DECLARATION OF JAMES F. CURRAN 15 IN SUPPORT OF DEFENDANT CALIFORNIA HIGHWAY PATROL'S 16 OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO 17 THE CALIFORNIA HIGHWAY PATROL; SPECIAL INTERROGATORIES, SET and DOES 1-100, inclusive, THREE 18 Defendants. Date: May 10, 2022 19 Time: 1:30 p.m. Dept: 53 . 20 Judge: Hon. Richard K. Sueyoshi Trial Date: March 6, 2023 21 Action Filed: September 23, 2019 22 23 I, James F. Curran, am an attorney licensed to practice law in all courts of the State of 24 California. I am a Deputy Attorney General and counsel of record for Defendant California 25 Highway Patrol (CHP) in this case. I have analyzed the pleadings and documents relevant to this 26 lawsuit and have engaged in "meet-and-confer" communications via email, U.S. mail, and 27 telephone, with Plaintiffs counsel, John Briscoe, of Mayall Hurley, PC, conceming two motions 28 to compel that Mr. Briscoe filed on behalf of Plaintiff David Ridge regarding the survey sent out 1 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) t # 1 to CHP officers by Officer Erik Mallory. The first motion concerned a notice of Mallory's 2 further deposition and a document demand therein. The second motion is the present motion to 3 compel further responses by CHP'to Plaintiffs Special Interrogatories, Set Three. I therefore 4 have personal knowledge of the matters described below, and could competently testify to. their ; 5 truth if called upon to do so. 6 1. Attached as Exhibit 1 is a tme and correct copy of an excerpt from the tentative rulings 7 issued on June 3, 2021, by Department 53 of this court, including, as Item 4, the tentative, now: 8 final, ruling on Plaintiff David Ridge's motion to compel answers at deposition of Matthew 9 Stover. 10 2. Attached as Exhibit 2 is a tme and correct copy of the Complaint for Damages that. , 11 Plaintiff David Ridge filed to initiate this litigation. 12 3. I represented CHP at the first session of the deposition, taken via Zoom by Plaintiff s 13 counsel, John Briscoe, of CHP Officer Erik Mallory on December 15, 2021. Mallory participated 14 from a different location than my location during the Zoom deposition. At this deposition, „ ; 15 Mallory testified he had in his possession paper copies of responses to a survey he had 16 disseminated, with the help of a union representative, to a large number of CHP officers. Mallory 17 scanned and emailed to me pdf copies of the survey response forms after the conclusion of the 18 first, and, thus far, only, session of his deposition on December 15, 2021. Prior to receiving these 19 pdf copies from Mallory, my office had not received the survey response forms from CHP, and, 20 to the best of my knowledge, our points of contact for this case at CHP did not possess the survey 21 response forms. Copies of the survey response forms are attached as Exhibit 2 to the Declaration 22 of John Briscoe, filed by Plaintiff in support of the present motion. Those copies of the forms 23 have the responding officers' CHP identification (badge) numbers redacted pursuant to agreement 24 between the parties during the meet-and-confer process. 25 4. Attached as Exhibits 3 through 10, inclusive, are true and correct copies of email 26 strings between Mr. Briscoe and me or my secretary, Chris Irby. On December 29, 2021,1 27 emailed Mr. Briscoe, at 3:35 p.m., and informed him my office was redacting and readying for 28 production the survey result forms.that Mallory described during his deposition. (See Exh. 3, pp. 2 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) 1 2-3.) At 3:45 p.m. on December 29, 2021, Mr. Briscoe emailed me and asked why the survey 2 responses should be redacted and to what extent. (See Exh. 3, pp. 2-3.) On January 4, 2022,1, 3 responded and notified Mr. Briscoe that the survey response forms included names, identification 4 numbers and statements attributed to CHP officers, and thus CHP was prohibited from disclosing 5 some or all of this information by the Information Practices Act (IPA) or the Peace Officerv:Bill of 6 Rights,. (See Exh. 3, pp. 1-2.) I also pointed out that Mr. Briscoe did not need any ofthe 7 respondents' names to argue that a certain number of respondents said "yes" to one. or rnore ^ , 8 survey questions. (Ibid.) On January 5, 2022, Mr. Briscoe responded via email at 12:34 p.m.r 9 and, among other,points, argued the officers who filled out the survey response forms had waived 10 any privacy protection of their rnedical condition (the survey asked the officers abqut \yhether 11 they had experienced "back stress from wearing the duty belt" on which patrol officers hang their 12 weapons and other equipment). (See Exh. 3, top of p. 1) In this email, Mr. Briscoe also argued 13 that .siibdivision (k) of section 1798.24 of the Code of Civil Procedure contained an exception, for 14 "compulsory legal process," to the IPA's restrictions on disclosure of state employees' personal 15 information or statements made by those employees. (Ibid.) _ 16 5. In his email of 12:34 p.m. on January 5, 2022, Mr. Briscoe proposed a "notiee,process" 17 (see Exhibit 3, p. 1) by which his office would retain a third-party administrator (TPA) to send a 18 notice to all of the survey respondents explaining the nature of the case and explaining that the, .,. 19 respondents had the right to object to disclosure of their names and contact information.; Mr. 20 Briscoe proposed that the parties split the TPA's costs, and, to the extent written objections were 21 not received by the TPA from the officers who responded to the survey within 30 days, CHP 22 would produce unredacted survey response forms, while CHP could redact the names and 23 identification numbers of any respondent who objected to disclosure of his or her information. 24 On January 12, 2022, at 10:33 a.m., I responded (see Exh. 4, p. 6,) and pointed out that, during a 25 phone call on January 6, Mr. Briscoe and I had agreed to table the dispute over redaction of 26 officers' names and identification numbers while the parties tried to settle the case. The parties 27 were not able to settle the case. On February 3, 2022,1 sent an email at 4:27 p.m. to Mr. Briscoe 28 (see Exh. 4, p. 2) pointing out that the survey responses were not CHP's documents, and asking 3 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) 1 Mr., Briscoe if he had legal authority for the proposition that a document demand in a deposition 2 notice constituted "compulsory legal process" for purposes of the IPA's exception clause in Code 3 of Civil Procedure section 1798.24. I informed Mr. Briscoe that we had not found any authority 4 for that proposition and therefore we could not run the risk of violating the IPA and subjecting 5 CHP to being sued for violating it (the IPA provides for a private right of action by any state 6 employee who believes his or her employer harmed the employee by violating the IPA) by 7 releasing the survey response forms with the responding officers' names and identification 8 numbers visible. Six minutes later, at 4:33 p.m. on February 3, 2022, Mr. Briscoe responded via 9 email: "No need to hold the date [for Mallory's continued deposition]. You've made your 10 /705//IOW c/eo/'flwrf we M'///y7/e OM/* wo/Zo/i." (See Exh. 4, p. 2 [emphasis added].) 11 6. On February 9, 2022, Mr. Briscoe sent his email of 4:12 p.m., arguing that Code of Civil 12 Procedure section 1798.76, part of the IPA, contains an exception for discovery in civil litigation ., 13 that would allow CHP to release and disclose the officers' narnes, identification nurnbers, and , 14 responses to the questions asked in the Mallory survey. .(See Exh. 4, pp. 1-2.) Later that day;. 15 (Feb. 9, 2022), 1 responded via email at 5:44 p.m. and told Mr. Briscoe I would discuss; his 16 contention with the client. (See Exh. 4, p. 1) 17 7. On February 15, 2022,1 emailed Mr. Briscoe at 4:16 p.m. (see Exh. 5, p. 2) and 18 informed him CHP was interested in the TPA procedure he has suggested, and asked that he 19 obtain cost estimates from two TPA's. I informed him CHP would require, as conditions, that the 20 unredacted survey response forms would be designated "ATTORNEY'S EYES ONLY," and 21 CHP would require that Plaintiff agree to refrain from filing a motion to compel production of the 22 unredacted survey forms. (Ibid.) 1 pointed out that CHP did not want to pay half of the TPA's 23 costs and later have to defend a motion to compel if only a small number of respondents granted 24 permission for disclosure of their information. At 4:31 that day (Feb. 15, 2022), Mr. Briscoe - ' 25 emailed me and stated Plaintiff was not amenable to CHP's proposal that included the two 26 conditions, labeling those conditions "onerous." (See Exh. 5, p. 2, top email.) On February 17, 27 2022,1 emailed Mr. Briscoe at 1:20 p.m. (see Exh. 5, p. 1) and pointed out the IPA provides for 28 redactions. Later on the afternoon of February 17, 2022, Mr. Briscoe sent his email of 1:26 p.m. 4 • Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) 1 (see Exh. 5, p 1, top email) and again argued Code of Civil Procedure section 1798.76 permits 2 disclosure of names, addresses, and statements of public employees any time the parties are 3 involved in civil litigation. 4 8. On February 22, 2022, Plaintiff filed his Motion to Compel Further Deposition of Erik 5 Mallory and for Sanctions, with a hearing date of April 7, 2022. On March 9, 2022,1 sent Mr. ,6 Briscoe my email of 1:59 p.m. (see Exh. 7, p. 3, bottom email) stating CHP's offer to produce the 7 Mallory survey responses in unredacted form subject to the protective order already on file in this 8 litigation if Plaintiff would withdraw the motion to compel the further deposition of Mallory. Mr. 9 Briscoe responded at 2:29 p.m. on March 9 and stated he did not see why the documents should 10 be marked "confidential." He stated Plaintiff would withdraw the motion if CHP produced the 11 forms without any redaction of confidential designation. I responded that day (March 9, 2022) at 12 3:39 p.m. (see Exh. 7 at pp. 2-3) and stated the forms needed to be marked "Confidential - 13 Subject to Protective Order" so the survey forms would not be used outside.this litigation. At. 14 3:44 p.m., Mr. Briscoe responded and stated Plaintiff would stipulate not to use the survey 15 response forms outside this litigation and that CHP may redact the CHP identification numbers 16 from the forms. I responded at 4:08 p.m'. on March 9, 2022 (see Exh. 7, p. 2, top email) and again 17 requested that Plaintiff, if he was willing to refrain from using the forms outside this litigation, 18 should be fine with CHP designating the forms as "Confidential - Subject to Protective Order." 19 Mr. Briscoe responded at 4:18 p.m. that he did not need a formal stipulation to stick to his word. 20 (See Exh. 7 p. 1, bottom email.) I responded on March 13, 2022 at 2:00 p.m. (see Exh. 7, p. 1, 21 top email) that CHP had agreed that Plaintiff need not file the forms under seal in future filings, 22 as long as the Confidential - Subject to Protective Order remained on the forms. I informed Mr.' 23 Briscoe that we had the forms, with only the identification numbers redacted, ready to produce. 24 9. On March 14, 2022, Mr. Briscoe emailed me at 2:16 p.m. and stated Plaintiff would 25 drop the motion to compel further deposition of Mallory once the documents were produced. 26 (See Exh. 8, p. 1, top email.) 27 10. On February 28, 2022, Plaintiff served his Special Interrogatories, Set Three. (5ee 28 Proof of Service, Exhibit 3 to the Declaration of John Briscoe filed in support of the present 5 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) t # 1 motion, final page.) CHP served its responses to those interrogatories on March 29, 2022. (See 2 Proof of Service, Exh. 4 to Briscoe Dec, final page;) On March 29, 2022, at 11:07 a.m., Mr. 3 Briscoe sent me an email requesting a telephone call to discuss CHP's responses to those 4 interrogatories. (See Exh. 9, pp. 3-4.) Mr. Briscoe and I spoke via telephone on March 31, 2022, 5 about CHP's responses. On April 5, 2022,1 sent Mr. Briscoe an email at 5:38 p.m. informing 6 him that, with respect to Special Interrogatory No. 9,' CHP was in the process of determining if 7 there was any record of any CHP officer "telling" the Uniform Committee that external vests 8 should be approved for patrol officers. (See Exh. 9, pp. 2-3.) I informed Mr. Briscoe that if there 9 was any such record, CHP would serve a further response to Interrogatory No. 9 with the work 10 contact information of any officers who made such a statement to the Uniform Committee. 1 have 11 contacted, since writing my email of April 5 at 5:38 p.m. to Mr. Briscoe,the appropriate CHP 12 personnel about whether such a record exists, and just received the final response for which I was 13 waiting on April 25, 2022. I am now informed and believe there is no such record of any CHP 14 officer making the specified statement to the Uniform Committee. Therefore, CHP will serve, as 15 soon as possible, a further response to Interrogatory No. 9 stating this and stating CHP has made a 16 "reasonable and good faith effort to obtain the information by inquiry to" the appropriate persons 17 (Code Civ. Proc, § 2030.220, subd. (c)), without waiving CHP's objections to this interrogatory 18 (Code Civ. Proc, § 2030.240, subd. (a)). In this email of April 5 at 5:38 p.m., I also informed 19 Mr. Briscoe that CHP would not disclose, in response to Special Interrogatory No. 10, the home 20 addresses, aliases, home telephone numbers and personal email addresses for the hundreds of 21 officers who responded to the Mallory survey. (See Exh. 9, at pp. 2-3.) I pointed out that Penal 22 Code section 832.7 permits public agencies to redact records even where a judge orders 23 information from those records disclosed pursuant to a Pitchess motion.^ I also pointed out that 24 even non-peace-officer employers generally do not provide home addresses and telephone 25 numbers for their personnel, even if those personnel are witnesses. 1 concluded my email by 26 ' Special Interrogatory No. 9 reads as follows: "IDENTIFY each officer of DEFENDANT who, in the past twenty years, has told DEFENDANT'S Uniform Committee that 27 external load-bearing vests should be an approved uniform item for DEFENDANT'S patrol officers." 28 2 Pitchess V. Superior Court (Echeveria) (1974) 11 Cal.3d 897. 6 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) 1 pointing out that it is not reasonable to expect a law enforcement agency to provide the home 2 addresses, personal phone numbers, and personal email addresses of its patrol officers just 3 because they might have rendered a lay opinion on a uniform policy proposal. The next day, 4 Mr. Briscoe sent his email of April 6, 2022 at 8:07 a.m. (see Exh. 9, p. 2), stating he was 5 "disappointed" that CHP and the undersigned were "going to great lengths to conceal the names 6 and contact information for percipient witnesses, inflagrantviolation of the text ofthe Civil 7 Discovery Act." I responded to this email at 3:26 p.m. on April 6,2022 (see Exh. 9, pp. 1-2), and 8 offered to provide the survey response forms without the CHP identification numbers redacted 9 and to provide the work email addresses, work addresses and work telephone numbers of up to 20 10 officers who responded to the Mallory survey. I further offered that the parties could meet and 11 confer further if Mr. Briscoe decided he needed more than 20 names. On April 6, 2022 at 4:29 12 p.m., Mr. Briscoe sent me an email (see Exh. 9, p. 1) stating, among other things, that he would 13 not put personal contact information of patrolmen in the public record. Before I was able to 14 respond. Plaintiff filed the present motion on April 7, 2022. 15 11. Attached as Exhibit 11 is a true and correct excerpt from the transcript of the percipient 16 witness deposition of Captain Matthew Stover, who was Plaintiffs second-level supervisor 17 during the events giving rise to this case. 18 12. Attached as Exhibit 12 is a true and correct copy, with redactions, of the Disability 19 Retirement Approval Letter issued by CalPERS to Plaintiff on January 3, 2022. 20 13. Attached as Exhibit 13 is a true and correct copy, with redactions, of Plaintiff s 21 Application for Reinstatement from Disability Retirement, signed by Plaintiff on October 30, 22 2021. 23 14. Attached as Exhibit 14 is a true and correct copy of a memorandum, with redactions, 24 informing the recipient that Plaintiff was to report to CHP's Academy for a requalification 25 training course on February 14, 2022. 26 15. Attached as Exhibit 15 is a true and correct copy of a June 25, 2014 memorandum 27 setting forth the minutes of the Second Quarter 2014 meeting of CHP's Uniform Committee. 28 7 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) 1 16. Attached as Exhibit 16 is a true and correct copy of an April 7, 2017 memorandum 2 setting forth the minutes of the First Quarter 2017 meeting of CHP's Uniform Committee. 3 17. Attached as Exhibit 17 is a true and correct copy of a July 18, 2017 memorandum 4 setting forth the minutes of the Second Quarter 2017 meeting of CHP's Uniform Committee. I 5 am informed and believe, after review of the these and several other sets of the Committee's 6 meeting minutes, that the Uniform Committee has not evaluated any other ELBV prototype since 7 Officer Mallory presented his in March 2017. 8 18. I am informed and believe Plaintiff (a) has completed the requalification course, (b) is 9 presently working full duty (not limited or "light duty") as a patrol officer out of CHP's area 10 office in Santa Ana, (c) is performing patrol officer duties while wearing the regular "duty belt," 11 or Sam Browne belt, and (d) has made no request for reasonable accommodation of his disability 12 since he applied to be reinstated in October 2020 and retumed to work with CHP. 13 /// 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 „ 8 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) 1 19. I have spent in excess of five (5) hours reviewing, and preparing CHP's opposition to, 2 this motion, including this declaration and the exhibits attached hereto. The Employment and 3 Administrative Mandate Section'of the California Attorney General's Office, to which I am 4 assigned, charges its client agencies, including CHP, $220 per hour for legal services. I 5 respectfully submit this is a reasonable and less than customary charge for these services. 6 anticipate I will spend approximately two (2) additional hours reviewing Plaintiffs reply to 7 CHP's opposition and preparing for and attending the hearing on this motion. Therefore, 8 anticipate CHP will incur attorney fees in excess of $1,540 for the review of this motion and 9 Plaintiffs reply papers, for preparation of this opposition, my declaration and proposed order, and 10 for oral argument. 11 I declare under penalty of perjury under the laws of the State of Califomia that the 12 foregoing is true and correct. Executed on April 27, 2022 at Sacramento, California. 13 14 15 16 17 SA2019106238 36125639.docx 18 19 20 21 22 23 24 25 26 27 28 Declaration of Curran in Support of Opposition to Motion to Compel (34-2019-00265393) EXHIBIT 1 NOTICE: To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858 (Department 53) by 4:00 p.m. the court day before this hearing and advise opposing counsel, if no call is made, the tentative ruling becomes the order of the court. Local Rule 1.06. Until further notice, NO IN-PERSON APPEARANCES WILL BE PERMITTED. All court users are required to appear via Zoom [which includes telephonic and video options]. NO COURTCALL APPEARANCES WILL BE ACCEPTED. The Department 53 Zoom link is http://saccourt.zoom.us/my/dept53.54a . The Department 53 Zoom ID Is: 841 204 6267. To appear on Zoom telephonically, call (888) 475-4499 or (877) 853-5257 (toll-free) and enter the Zoom ID referenced above. Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure. To request oral argument, on any matter on this calendar, you must call the Department 53 clerk at (916) 874-7858 by 4:00 p.m. the court day before the hearing and advice opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mall message to advise the clerk that it has notified the opposing party of the following: a) its intention to appear and b) that opposing party may appear via Zoom using the Zoom ID indicated above, if no request for oral argument is made, the tentative ruling becomes the final order of the Court. Local Rule 1.06. The hearings will also be live-streamed on the Court's YouTube page for the benefit of the public. Although the hearings will be live-streamed on the Court's YouTube page, the broadcast will not be saved/preserved. Thus, if any party wishes to preserve the hearing for future use, a court reporter will be required. During the COVID-19 emergency, the Court will supply a court reporter upon request. Any party desiring a court reporter shall so advise the clerk upon request for oral argument. Unless a fee waiver has been granted, the reporter's fee must be paid to the Court prior to the hearing. Local Rule 1.12 and Government Code § 68086. Department 53 Superior Court of California 813 Sixth Street, 2nd Floor , Raymond M. Cadel, Judge Staff, Cierk P. Lopez, Bailiff Thursday, June 03, 2021,1:30 PIVI Item 1 2016-00195215-CU-MM Jason Wright vs. Mercy General Hospital Nature of Proceeding: Motion to Compel - Other - Civil Law and Motion Filed By: This matter is dropped from calendar. Item 2 2016-00199655-CU-NP Jesus Sandoval vs. Sacramento Post-Acute Nature of Proceeding: Motion to File Second Amended Complaint Filed By: Laird, Sean R. ; ' Plaintiff Jesus Sandoval, by and through his successor-in-interest Anna Sandoval's unopposed motion for leave to file a second amended complaint is granted. In this elder abuse action Plaintiff seeks leave to a file a second amended complaint to specifically add the names of Doe Defendants to the complaint and to make otiier spelling changes and delete repetitive paragraphs. Leave to amend is proper. The motion is granted. Plaintiff shall file and serve the proposed second amended complaint attached as Exhibit 2 to Plaintiffs counsel's declaration no later than June 14, 2021. The Court will not deem the proposed pleading filed and served. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. Item 3 2016-00204361-CU-WT Linda Larkin vs. The Permanente Medical Group, Inc. Nature of Proceeding: Motion for Summary Judgment and/or Adjudication Filed By: Wilbur, Michael E. Defendants The Permanente Medical Group and Kaiser Foundation Hospital's motion for summary judgment is dropped as moot. An unconditional notice of settlement of the entire case was filed on May 14, 2021 and Plaintiffs request for dismissal was entered on May 20, 2021. Item 4 2019-00265393-CU-OE David Ridge vs. The California hiighway Patrol Nature of Proceeding: Motion to Compel Answers at Deposition Filed By: Briscoe, John P. Plaintiff David Ridge's motion to compel "answers at deposition of Matthew Stover" denied. In this FEHA disability discrimination action Plaintiff alleges that the California Highway Patrol ("CHP" or "Defendant") denied him a reasonable accommodation for his physical disability, a bacl< injury, which forced him into early retirement. He alleges that his disability could have been accommodated by allowing him to wear his sidearm and equipment on a weight-bearing vest instead of the traditional leather belt. Plaintiff took the deposition of Captain Matthew Stover ("Cpt. Stover"), his commander. At the deposition, Plaintiffs counsel asked Cpt. Stover the following question a number of times: "Can you think of any reason why it would not be reasonable for someone in Officer Ridge's position to wear the weight-bearing vest?" (Briscoe Decl. Exh. B p. 35:17-19.) Plaintiff argues that Cpt Stover provided evasive answers and that while the question was pending, CHP's counsel left with Cpt. Stover and after they returned, CHP's counsel's interposed improper objections and Cpt. Stover continued to evade the question. Cpt. Stover provided the following answers to Plaintiffs counsel's attempts to ask the question at issue: "Well, one, I don't make that decision and, two, I think there is a device that was approved for him to wear." "I don't have an opinion and I don't make those decisions." "I don't-l don't have an opinion on that" (Id. Exh. B pp. 35:21-41:3.) Plaintiff now moves to compel Cpt Stover to answer the question at issue. i i ; "If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move for any order compelling that answer or production." (CCP § 2025.480(a).) Plaintiff argues that the question posed is relevant to the issue of whether the vest was a reasonable accommodation and that Cpt. Stover must be ordered to answer the question. In opposition, CHP argues that Cpt. Stover answered the question and that CHP's counsel never instructed him not to answer. To that end, CHP argues that Cpt. Stover simply made clear and numerous times that he had no opinion on whether it would have been reasonable to allow Plaintiff to wear the subject vest. As seen froni the deposition testimony highlighted by CHP in opposition, each time Plaintiffs counsel sought to ask the subject question, or a version of it, CHP's counsel objected on the basis that it called for improper opinion testimony/legal conclusion and also asked multiple times for clarification if Plaintiffs counsel was using "reasonable" to refer to "reasonable accommodation" under the applicable FEHA statue. (Curran Decl. Exh. A p. 34:4-37:25.) Plaintiffs counsel did not clarify the term "reasonable." CHP's counsel announced that a break would be taken and after the break Plaintiffs counsel again asked the question and CHP's counsel interposed similar objections, though never instructed Cpt. Stover not to answer. Here, the Court finds that Cpt. Stover answered the question posed to him at the deposition and did not refuse to answer. Rather, Plaintiff simply does not like the answer provided. That is, while Plaintiff seeks to force Cpt. Stover to answer the question "Can you think of any reason why it would not be reasonable for someone in Officer Ridge's position to wear the weight-bearing vest?" with a yes or no, Cpt. Stover answered that he does not make those decisions and that he has no opinion on that issue. In fact, Plaintiffs counsel indicated that he was "asking for the opinion of a seasoned officer ofthe CHP." (Curran Decl. Exh. A. pp. 36:24-37:3.) Cpt. Stover answered that he has no such opinion. CHP's counsel never instructed Cpt. Stover not to answer the question and in fact, Plaintiffs counsel asked the question in various forms and each time Cpt. Stover provided a response as seen above, just not a response that Plaintiff likes. The Court simply cannot compel Cpt. Stover to provide a different answer. Despite Plaintiffs vigorous arguments to the contrary, this is not a scenario where a deponent has refused to answer a question. On this basis alone, the motion is denied. Given the above, the Court need not resolve CHP's alternate argument, that is, that the line of questioning at issue sought to elicit an improper lay opinion from Cpt. Stover as to whether the weight-bearing vest would be a reasonable accommodation. The Court does note, however, that CHP is generally correct that a lay witness's opinion is limited to an opinion that is "(a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony." (Evid. Code § 800.) A case neither party cited provides a good illustration ofthis point. "Opinion testimony ofa lay witness may be particularly helpful when the matters observed by the witness may be too complex or subtle to enable the witness to accurately convey them without resorting to the use of conclusory descriptions." {Osbom v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112-113.) Thus, a lay witness may properly offer an opinion that an individual was "drunk", that people were "angry", that an impact as strong enough to jar a passenger from a seat, or that a person was "trying to break up a fight:" (Id. at 113.) However, a lay witness may not, for example, in a premises liability case, offer an opinion as to an ultimate issue of fact to be decided by the jury, for example, whether a condition on property was reasonable, (/of.) Such an opinion from a lay witness would not be helpful to an understanding of the witness' testimony and would "invade[ ] the province of the jury, which was to determine the reasonableness of both parties' conduct" {Id. at 114.) The question ofthe reasonableness of an accommodation is a question for the jury. {Prilliman v. United Air lines, Inc. (1997) 53 Cal.App.4*^ 935, 954.) i ' • • j. I An opinion by Cpt. Stover, a lay witness, regarding whether.,weight-bearing vest is or is not a reasonable accommodation could well be found to invade the province of the jury which is tasked to determine whether an accommodation is or is not reasonable. Though, as Plaintiff correctly notes in reply, admissibility is not the test for discovery. He argues that this is not a motion in lirhine and Cpt. Stover could testify as to his observations regarding the subject vest and how it could be unsafe, which could lead to the discovery of admissible evidence, including testimony that could ultimately render Cpt. Stover's opinion admissible. The Court agrees that even a finding that the testimony regarding an opinion as to whether the vest was a reasonable accommodation would not be admissible at trial would not be a basis to deny the motion. But, this motion was only premised on seeking to compel Cpt. Stover to answer a question as to whether he had an opinion if the subject vest was a reasonable accommodation. He did not have such an opinion and the Court cannot compel him to have one. The Court found that Cpt. Stover in fact answered the ' i question at issue on this motion, though not to Plaintiffs liking. The motion was not premised on seeking to compel Cpt. Stover to answer questions regarding his observations ofthe vest, for example whether he had seen it used, etc. Those questions are not before the Court on this motion. There is no reason they could not have been asked at Cpt. Stover's deposition. The motion is denied. Both parties' requests for sanctions are denied. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. Item 5 2019-00268273-CU-BC Performance Automotive Group vs. Emergency Vehicle Outfitter Nature of Proceeding: Motion to Enforce Settlement Filed By: Costa, Daniel P. EXHIBIT 2 Superior Cau,:'i i>S" i';;s\]ifirx^ir^ 1 MAYALL HURLEY P.C. NICHOLAS F. SCARDIGLI (SBN: 249947) 2 nscardigii@mayaIla>v.coni 3 JOHN P. BRISCOE (SBN: 273690) jbnscoe(@mayallaw.com 4 RACHAEL ALLGAIER (SBN: 318664) rallgaicr(@mayaUaw.com 5 2453 Grand Canal Boulevard Stockton, California 95207-8253 6 Telephone: (209) 477-3833 7 Facsimile: (209)473-4818 8 Attorneys for Plaintiff David Ridge 9 SUPERIOR COURT OF THE STATE OF CALIFORNU 10 IN AND FOR THE COUNTY OF SACRAMENTO 11 DAVID RIDGE, an individual, Case No.: 12 Plaintiff, COMPLAINT FOR DAMAGES 13 14 vs. 1. DISABILITY DISCRIMINATION 2. FAILURE TO ACCOMMODATE 15 THE CALIFORNIA HIGHWAY PATROL; 3. FAILURE TO ENGAGE IN THE and DOES 1-100, Inclusive, INTERACTIVE PROCESS 16 4. RETALIATION FOR REQUESTING Defendants. ACCOMMODATION 17 5. FAILURE TO PREVENT DISCRIMINATION 18 AND RETALIATION 19 JURY TRIAL DEMANDED 20 21 Plaintiff David Ridge brings this action against the Califomia Highway Patrol; and Does 22 through 100, for violarions of the Fair Employment and Housing Act (Gov, Code, § 12900 et. 23 seq). 24 PARTIES 25 1. David Ridge ("Ridge" or "Plaintiff) is an individual and was an "employee" as 26 defined by the Fair Employment and Housing Act. 27 28 Complaint for Damages Page 1 of 7 . 1 2. The California Highway Pati'ol ("CHP") is a state law enforcement agency of the 2 State of California and, at all times relevant herein, was an "employer" as defined by the Fair 3 Employment and Housing Act. 4 3. "CHP" and Does 1-100 are collectively refeaed to as Defendants. 5 4. Plaintiff is not aware ofthe true names and caplacities ofthe Defendants sued herem 6 as Does 1 through 100, whether individual, corporate, associate, or otherwise and therefore sues 7 such Defendants by theseficridousnames. Plaintiff will amend this Complaint to allege theiji- true 8 names and capacities when ascertained. Plaintiff is informed and believes, and on that basis 9 alleges, that each of thefictitiouslynamed Defendants is responsible in some manner for the 10 occurrences herein alleged and that Plaintiffs injuries and damages herein alleged were legally 11 caused by such Defendants. Unless othei-wise indicated, each Defendant was acting witiiin the 12 course and scope of said agency and/or employment, with the knowledge and/or consent of said co- 13 Defendant. 14 5. Plaintiff is informed and believes and thereupon alleges that at all times rhentioned 15 herein, each of the Defendants, including each Doe Defendant, was acting as the agent, servant, 16 employee, partner and/or joint venturer of and was acting in concert with each of tlie remaining 17 Defendants, uicluding each Doe Defendant, ui doing the things herein alleged, while at all times 18 acting within the course and scope of such agency, service, employment partnership, joiiit venture 19 and/or concert of action. Each Defendant, in doing the acts alleged herein, was acting both 20 individually and within the course and scope of such agency and/or employment, with the 21 knowledge and/or consent of tlie remaining Defendants. .22 JURISDICTION AND VENUE 23 6. Venue is proper in this Court because the records relevant to tlie unlawfijl practices 24 alleged herein are maintained and administered in Sacramento County. (See Gov, Code, § 1.2965, 25 subd. (a).) Plaintiff hereby demands a jury trial. 26 /// 27 W 28 Complaint for Damages Page 2 of? 1 GENERAL ALLEGATIONS 2 7. Ridge was Wred by CHP in 1995, and after completing training was placed oh duty 3 as a patrol officer. 4 8. In 2015, Ridge sustained a back injury wliile on the job. Due to the back injury, he 5 was placed on limited duty—relegating him to a desk job—which does not allow for any oveitune. 6 Thus, Ridge began to lose wages. 7 9. Ridge wishes to return to Ml duty, to be placed back on'palTol, and for the 8 opportunity to work overtime again, 9 10. On or around April 5, 2019, Ridge submitted a request for reasonable 10 accommodation to his supervisor, Sergeant John Mueller, requesting that he be permitted to retum 11 to full duty. Specifically, Ridge requested that he be permitted to wear a vest carrier instead of the 12 belt carrier that most patrol officers wear to cairy their equipment. This vest canier would allow 13 Ridge to retum to full duty as tlie weight of his equipment would be more evenly distributed than if 14 he were wearing the standard belt carrier, and would not place a strain on his back, 15 11. At this time, both Sgt, Mueller and Lieutenant Matt Stover (Ridge's commander) 16 informed Ridge that the request would never be approved because WaiTen Stanley, the 17 Commissioner of CHP, stated that he did not want to see patrol officers wearing such vest carriers, 18 as the belt carriere are more "traditional". 19 12. While the vest carriers are not traditionally worn by .patrol officers,, they, are readily 20 dvailable to CPIP, as other units within CHP regulariy wear them. Pemiitting Ridge to wear a vest 21 canrier would not constitute an imdue hardship for CHP, pose a health or safetyriskto Ridge or 22 others, or interfere with CHP operations in any way. 23 13. On or around April 23,2019, Ridge received a memorandumfi-omLt. Stover stating 24 that Ridge's "reasonable accommodation request" had been received, and that the interactive 25 process needed to continue with the Iiyury & Illness Case Management Unit. 26 14. On or around May 2, 2019, Ridge obtained a note from his medical provider in 27 support of his request for reasonable accommodation, and submitted it to CHP. 28 Complaint for Damages Page 3 of 7 1 15. On or around May 6, 2019, Sgt. Mueller retumed the request for reasonable 2 accommodation with no explanation, 3 16. On or around June 21, 2019, Ridge spoke with Sgt. Mueller and inquired as to the 4 status of his request for reasonable accommodation. Sgt. Mueller began to pressure Ridge, stating 5 that he needed to be "honest" with his doctors and tell them that he cannot peribrm the duties of a 6 patrol officer. Ridge responded, accurately, that he could perfoim those duties, with reasonable 7 accommodation. Nonetheless, Sgt. Mueller told Ridge that CHP v/as "fast-tracking" him to 8 retirement. 9 17. To date, Ridge has not been permitted to weai- the vest carrier, has not been offered 10 any other reasonable accommodation, and CHP has wholly failed to engage in a tunely, meaningfijl 11 interactive process so as to detennine reasonable accommodations. Ridge is infomed and 12 beUeves, and therefore alleges, that under CHP policies, if he is not pennitted to return to full duty, 13 he will be forced to retire in April 2020. Ridge has no immediate plans to retne and, as CHP 14 knows, is and has been ready, wilting, and able to retum to fully duty with reasonable 15 accommodation since April 2019. 16 18. On July 2,2019, Ridge filed charges with the California Department of Fair 17 Employment and Housing based on the aforementioned unlawfiil conduct and was issued a right- 18 to-sue notice that same day. 19 19. Tlie foregoing list ofmisconduct is a partial list only and set forth by way of 20 example. 21 FIRST CAUSE OF ACTION 22 DISABILITY DISCRIMINATION (Gov. Code, § 12940, subd. (a)) , 23 Against Defendants 24 20. Plaintiffhereby realleges and incorporates by reference each and every allegation 25 set forth above as though fiilly set forth herein, except as said paragraphs are inconsistent with the 26 allegations of this cause of action. 27 28 Complaint for Damages Page 4 of 7 21. FEHA prohibits an employer from discriminating against an employee based on 2 achial or perceived disability. (Gov. Code § 12940, subd, (a).) 3 22. Nevertheless, as set forth above, Defendants discriminated against Plaintiff based on 4 actual and perceived disability. 5 23. As a result of Defendants' conduct. Plaintiff has suffered damages. 6 24. Wherefore, Plaintiff seeks damages as set fortii below. 7 SECOND CAUSE OF ACTION FAILURE TO ACCOMMODATE 8 (Gov. Code, § 12940, subd. (m)) 9 Against Defendants 10 25. Plaintiff hereby realleges and incorporates by reference each and every allegation 11 set forth above as thoughfiillyset forth herein, except as said paragi-aphs are inconsistent with the 12 allegations ofthis cause of action. . 13 26. Tlie FEHA requires an employer to "make reasonable accommodation for the, 14 known physical or mental disability of an apphcant or employee." (Gov. Code, § 12940, subd. 15 (m).) 16 27. Nevertlieless, as set forth above. Defendants refused tp provide Plaintiff with 17 reasonable accommodation for a known disability. 18 28. As a result of Defendants' conduct, Plaintiff has suffered damages. 19 29. Wherefore, Plaintiff seeks damages as set forth below. THIRD CAUSE OF ACTION 20 FAD-rURE TO ENGAGE IN INTERACTIVE PROCESS (Gov. Code, § 12940, subd. (n)) 21 Against Defendants 22 30. Plaintiffhereby realleges and incorporates by reference each and every allegation 23 set forth above as though fully set forth herein, except as said paragraphs are inconsistent with the 24 allegations ofthis cause of action. 25 31. FEHA requires an employer "to engage in a thnely, good faith, interactive process 26 with the employee or applicant to determine effective reasonable accommodations, if any, in . 27 28 Complaint for Damages Page 5 of7 1 response to a request for reasonable accommodation by an employee or applicant with a known 2 physical disability or known medical condition." Gov. Code § 12940(n). 3 32. Neveillieless, as set forth above, Defendants failed to participate in timely, good 4 faith, or interactive discussions with Plaintiff 5 33. As a result of Defendants' conduct, Plaintiff has suffered damages. 6 34. Wherefore, Plaintiff seeks damages as set forth'below. 7 FOURTH CAUSE OF ACTION 8 RETALIATION FOR REQUESTING ACCOMMODATION (Gov. Code, § 12940, subd. (m)(2)) 9 Against Defendants 10 35. Plaintiffhereby realleges and incorporates by reference each and every allegation 11 set forth above as though fully set forth herein, except as said paragraphs are inconsistent with the 12 allegations of this cause of action, 13 36. The FEHA explicitiy prohibits an employerfi-omretaliating or otiierwise 14 discriminating against a person for requesting accommodation for'a disability, regaidless of 15 whether the request was granted. (Gov, Code, § 12940, subd. (m)(2).) 16 37. IMeverthelesa, as set forth above. Defendants unlawfully retaliated against Plaintiff 17 for requesting accommodation, in violation ofthe FEHA. 18 38. As a result of Defendant's conduct, Plaintiff lias suffered damages. 19 39. Wherefore, Plaintiff seeks damages as set forth below. 20 FIFTH CAUSE OF ACTION FAILURE TO PREVENT DISCRIMINATION AND RETALIATION 21 (Gov. Code, § 12940, subd. GO) 22 Against Defendants 23 40. Plaintiff hereby realleges and incorporates by reference each and eveiy allegation 24 set forth above as though fully set forth herein, except as said paragraphs are inconsistent with the 25 allegations of this cause of action. 26 41. The FEHA requires an employer to take all reasonable steps necessary to prevent 27 discrimination and retaliationfiromoccurring. (Gov. Code, § 12940, subd. (k).) 28 Complaint for Damages Page 6 of? 1 42. , Nevertlieless, as set forth above, Defendants failed to prevent discrimination and •I 2 retaliation against Plaintiff. 3 43. As a result of Defendants' conduct, Plahitiff has suffered damages. 4 44. Wherefore, Plamtiff seeks damages as set forth below. 5 PRAYER FOR RELIEF 6 WHEREFORE, Plaintiff prays judgment against Defendants as follows: 7 1. For compensatoiy, special, and general damages; 8 2. For injunctive relief; 9 3. For statutory attorneys' fees and costs, including but not limited to those availabl