Preview
FILED/EMOOBSE[)
1 JOSHUA S. FALAKASSA (SBN: 295045)
FALAKASSA LAW, P.C.
AUG 0 h 2022
2 1901 Avenue ofthe Stars Suite # 450
By: E Macdonald
3 Los Angeles, Califomia 90067 Deputy Clerk
Tel.: (818) 456-6168; Fax: (888) 505-0868
4 Email: josh@falakassalaw.com
5 ARASH S. KHOSROWSHAHI (SBN: 293246)
6 LIBERTY MAN LAW, P.C.
1010 F Street, Ste. 300
7 Sacramento, Califomia 95814
Tel.: (916) 573-0469; Fax: (866) 700-0787
8 Email: ash@libertymaniaw.com
9 Attomeys for Plaintiff,
SAHDA ZAMAN
10
11 SUPERIOR COURT OF CALIFORNIA
12 COUNTY OF SACRAMENTO
BY FAX
13
SAJIDA ZAMAN, CASE NO.: 34-2019-00252121
14
MEMORANDUM OF POINTS AND
Plaintiff,
15 AUTHORITIES IN SUPPORT OF EX
vs. PARTE APPLICATION FOR ORDER (1)
16 SPECIALLY SETTING HEARINGS ON
LIQUI-BOX CORPORATION, and DOES 1 DISCOVERY MOTIONS; (2)
17 through 20, inclusive.
CONTINUING MOTION FOR
18 SUMMARY JUDGMENT/SUMMARY
Defendants. ADJUDICATION HEARING; AND (3)
19 FOR LEAVE TO FILE ADDITIONAL
EVIDENCE IN OPPOSITION TO
20 DEFENDANT'S MOTION FOR
21 SUMMARY JUDGMENT/SUMMARY
ADJUDICATION
22
Date: August 5, 2022
23 Time: 9:00a.m.
Dept.: 53
24
Trial Date: September 12, 2022
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 I. INTRODUCTION
2 Defendant Liqui-Box Corporation ("Defendant") sought ex parte relief to schedule a
3 hearing date for its Motion for Summary Judgment and/or Summary Adjudication of Issues
4 ("MSJ"), thereafter providing Plaintiff Sajida Zaman ("Plaintiff') minimal time to oppose the
5 MSJ. In that time. Plaintiff served seven separate sets of written discovery on a host of topics,
6 including but not limited to (1) Defendant's OSHA logs for documenting recordable work-related
7 injuries; (2) "Me Too" evidence as to how other injured employees were treated when reporting
8 their injuries; (3) Defendant's safety and injury reporting trainings; (4) the status of equipment
9 which Plaintiff allege she injured herself with when working; (5) steps undertaken to
10 accommodate Plaintiff for her work-related disabilities; (6) Defendant's knowledge ofPlaintiffs
11 injuries and diagnoses, and so on.
12 All of these written discovery requests were germane to oppose the MSJ-however,
13 Defendant either only served objections to the requests, or never bothered to respond at all. After
14 PlaintifPs several efforts to meet and confer and come to resolutions, Defendant remained
15 steadfast in its refiisal to provide any discovery which was essential to oppose the MSJ. This
16 forced Plaintiff to file seven discovery motions seeking sanctions and oppose the MSJ with what
17 evidence she had available. But after Plaintiff filed her opposition. Defendant then served
18 responses to one set of discovery requests which provided facts essential to oppose the MSJ, even
19 though Defendant sat on the verified responses for two days before PlaintifPs opposition was due.
20 Plaintiffhas good cause to be seeking ex parte relief, as she faces irreparable harm if she
21 is not granted leave to provide supplemental briefing to oppose the MSJ based on the outstanding
22 discovery disputes. The discovery all goes toward evidence essential to opposing the MSJ and
23 raise fiirther disputes of fact not previously available to Plaintiff due to Defendant's obstruction.
24 Plaintiff thus respectfully requests this Court issue an Order (1) specially setting hearings
25 for PlaintifPs discovery motions to be heard on any date between August 29,2022 to September
26 1, 2022, inclusive; (2) continuing out the MSJ hearing date by sixty (60) days to October 10,
27 2022; and (3) granting Plaintiff leave to file supplemental briefing in opposition to Defendant's
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 MSJ. Altematively, should this Court not continue the MSJ hearing date. Plaintiff requests that
2 her discovery motions scheduled for October 18, 2022 be set for September 1, 2022.
3 II. STATEMENT OF FACTS.
4 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While
5 on the Job but was Terminated for Allegedly Not Reporting Immediately.
6 Plaintiff was a 16-year employee of Defendant, working as an Inspector-Packer. On or
7 about December 3, 2018, Plaintiff felt a pull on her left knee while working for Defendant, which
8 over time went Irom stiffness to consistent and considerable pain. (First Amended Complaint for
9 Damages and Injunctive Relief ["FAC"], ^ 7.) Plaintiff first became aware her pain was a work-
10 related knee injury on or about January 3, 2019, which was when she reported it to Defendant to
11 seek treatment and begin her worker's compensation claim, as she could no longer work due to
12 her pain, making her injury a disability limiting a major life activity. (FAC, 17.)
13 Thereafter, Plaintiff was instructed by Defendant to go home until fiirther notice but was
14 then summoned back for a work meeting on January 10,2019. (Id., ^ 9.) At the meeting Plaintiff's
15 16 years of employment was terminated because she allegedly "neglected to report [her] injury
16 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in
17 relevant part, "Immediately report all incidents to your supervisor, management team member no
18 matter how minor or without exception," and that "[a]ny violation of these Critical Safety
19 Behaviors will result in immediate termination of employment." (Id.)
20 Based on these allegations, Plaintiff alleges she was terminated in retaliation because of
21 her work-related injuries/disabilities and need for accommodation under the FEHA, with the CSB
22 policy used as pretext. (Id., 1| 10.)
23 B. Defendant's Counsel Seeks Ex Parte Relief at the Last Minute to Set a
24 Hearing for Defendant's Motion for Summary Judgnient.
25 Defendant at the eleventh hour on May 18, 2022 sought ex parte relief to set a hearing
26 date of August 10, 2022 for its MSJ. (Declaration of Arash S. Khosrowshahi in Support of Ex
27 Parte Application ["Khos. Decl."], f 3.) After this Court granted relief, the MSJ was then served
28 at the last possible minute on May 27, 2022, providing exactly 75 days' notice to Plaintiff, and
MEMORANDUM OF POINTS AND AUTHORITIES
1 giving her only the minimal time to file an opposition by the July 27,2022 deadline. (Khos. Decl.,
2 13.)
3 C. Plaintiff Diligently Served Discovery Regarding Essential Issues to be
4 Adjudicated in the MSJ, But Defendant Stonewalled Production of Any
5 Discoverv During PlaintifPs Time to Oppose tbe MSJ,
6 1. OSHA Logs, Related Documents, and Witness/Factual Information
7 Regarding Their Drafting and Storage.
8 Per 29 CFR § 1904.35(b)(2), employers must provide former employees and their
9 authorized representatives all retained OSHA injury and illness records within the next business
10 day without redactions. (Id., subds. (b)(2)(iii)-(v).) After Plaintiff requested Defendant's OSHA
11 logs via letter citing the regulation above. Defendant's counsel delayed production by several
12 days, only producing documents relevant to Plaintiffs employment, rather than all "current or
13 stored" logs Defendant has in its possession, custody, or control. (Khos Decl., T| 4.)
14 Plaintiff thereafter served her Requests for Production of Documents, Set Four, on or
15 about May 18, 2022, asking for all documents compromising Defendant's (1) OSHA 300
16 (Request for Production of Documents, Set Four, No. 1), (2) OSHA 300a (Id., No. 2), and (3)
17 OSHA 301 (Id., No.3) at its Sacramento facility where Plaintiff worked. (Khos Decl., \ 5; attached
18 as Exhibit A is a tme and correct copy of Plaintiff Sajida Zaman's Requests for Production of
19 Documents to Defendant LiquiBox, Inc., Set Four (4).)
20 Plaintiff that same day also served her Special Interrogatories, Set Three, on or about May
21 18,2022, asking (1) identifying information of persons responsible for drafting OSHA 300, 300a,
22 and 301 logs ("OSHA logs") at Defendant's Sacramento facility (Special Interrogatory, Set
23 Three, No. 30); (2) identifying information of persons responsible for storing OSHA logs at
24 Defendant's Sacramento facility (Id., No. 31); (3) identifying information of persons with
25 knowledge of Defendant's procedures relating to the drafting and storing of the OSHA logs at the
26 Sacramento facility (Id., No. 32); and (4) to describe where the OSHA logs are stored at the
27 Sacramento facility (Id., No. 33). (Khos Decl., ^ 6; attached as Exhibit B is a tme and correct
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 copy of Plaintiff Sajida Zaman's Special Interrogatories to Defendant Liqui-Box Corporation (Set
2 Three).)
3 On or about June 21, 2022, rather than provided responses. Defendant continued its
4 obstmction by serving only meritless, boilerplate objections to Plaintiffs requests for documents
5 and interrogatories. (Khos Decl., ^ 7.) Plaintiff met and conferred as to the objections in attempts
6 to obtain responses/documents and informally resolve the issues, but Defendant never provided
7 responses or documents. (Id.)
8 Plaintiff thereafter filed her motions to compel on Special Interrogatories, Set Three (Res.
9 ID: 2664201) and Requests for Production of Documents, Set Four (Res. ID: 2664202) to be
10 heard on October 18, 2022. (Khos Decl., t 8.)
11 2. "Me Too" Evidence as to Injured Employees Reprimanded or
.12 Terminated for Violating Defendant's CSB Policy.
13 On or about May 24, 2022, Plaintiff propounded her fifth set of Requests for Production
14 of Documents to Defendant. (Khos. Decl., ^ 9; attached as Exhibit C is a tme and correct copy
15 of Plaintiff Sajida Zaman's Requests for the Inspection and Production of Documents and Other
16 Things to Defendant Liqui-Box Corporation (Set Five).) Notably, Request for Production No. 1
17 (the only propounded request in the set) asked for: "All documents YOU identified in YOUR
18 responses to Plaintiff Sajida Zaman's Special Interrogatories to Defendant Liqui-Box Corporation
19 Set Four (4)." (Khos. Decl., ^ 9; see Exhibit C.)
20 The referenced Special Interrogatories, Set Four, were also served that same day, and in
21 sum ask for the following information: (1) the identifying information of employees who worked
22 at Defendant's Sacramento facility who (a) Defendant contends violated the CSB Policy in the
23 last 10 years (Special Interrogatory, Set 4, No. 34); (b) Defendant reprimanded for violating the
24 CSB policy in the last 10 years (Id., No. 35); (c) Defendant terminated for violating the CSB
25 policy m the last 10 years (Id., No. 36); (2)(a) identifying information of each person with
26 knowledge of each reprimand (Id., No. 37); (b) all facts which supported each reprimand (Id., No.
27 38); (c) all documents containing information Defendant relied on in the decision to reprimand
28 (Id., No. 39); (3)(a) identifying information of each person with knowledge of each termination
MEMORANDUM OF POINTS AND AUTHORITIES
1 (Id., No. 40); (b) all facts which supported each tennination (Id., No. 41); (c) all documents
2 containing information Defendant relied on in the decision to termination (Id., No. 42). (Khos.
3 Decl., 110; attached as Exhibit D is a tme and correct copy of Plaintiff Sajida Zaman's Special
4 Interrogatories to Defendant Liqui-Box Corporation (Set Four).)
5 Rather than respond, on or about June 27, 2022 Defendant provided only boilerplate
6 objections to the requests as well as the interrogatories. (Khos. Decl., 1| 11.) Plaintiff met and
7 conferred as to the objections in attempts to obtain responses/documents, and informally resolve
8 the issues, but Defendant never provided responses or documents. (M)
9 Plaintiff thereafter filed her motions to compel on Special Interrogatories, Set Four (Res.
10 ID: 2664199) and Requests for Production of Documents, Set Five (Res. ID: 2664198) to be heard
11 on October 18, 2022. (Khos Decl., 112.)
12 3. Defendant's Safety Training/Injury Reporting Practices; Steps to
13 Accommodate Plaintiff; Defective Trolleys; Employees Missing Work
14 from Cumulative Trauma Injuries; and Diagnoses of Plaintiff's Injuries.
15 On May 27, 2022 Plaintiff served her fifth set of Special Interrogatories propounded
16 against Defendant via email. (Khos. Decl., \ 13; attached as Exhibit E is a tme and correct copy
17 of Plaintiff Sajida Zaman's Special Interrogatories to Defendant Liqui-Box Corporation (Set
18 Five).)
19 The Special Interrogatories contained 22 separate interrogatories in relevant part asking
20 for: (1) safety trainings Defendant contends it provided Plaintiff and when they occurred (Special
21 Interrogatories, Nos. 45-46); (2) all steps Defendant took to evaluate modified work duties to
22 accommodate Plaintiff (Id., No. 48); (3) the date Plaintiffs injury was first identified (Id., No.
23 49); (4) the percentage of employees who missed work due to cumulative trauma injuries or not
24 in the last five years (Id., Nos. 50-51.); (5) all facts/witnesses/documents in support of
25 Defendant's contention that defective trolleys Plaintiff worked on were repaired (Id., No. 52-54);
26 (6) all facts/documents in support of the contention that Defendant trained employees to identify
27 disease, condition or injury from their signs and symptoms (Id., Nos. 56-57); (7) all
28 facts/witnesses/document in support of the contention that Plaintiff was diagnosed with a left knee
MEMORANDUM OF POINTS AND AUTHORITIES
1 and hamstring pain in relation to her 4 Panel EHS Disciplinary Review. (Id. Nos. 58-59); (8)
2 whether Defendant contends Plaintiff injuries were caused by her failure to follow Defendant's
3 instmctions provided in her training on proper operation of mega tote carts, and all supporting
4 facts (Id., Nos. 60-61); (9) whether attendance for such mega tote cart trainings were mandatory
5 (Id., No. 62); (10) the identities of all persons present for mega tote cart trainings, as well as all
6 documents reflecting the matters presented at the trainings (Id., Nos. 63-64); and (11) all facts
7 supporting Defendant's contention that PlaintifPs actions leading to her injuries were inconsistent
8 with anyttainingsprovided. (Id., No. 65.) (Khos. Decl., ^ 14; see Exhibit E.)
9 However, Defendant never served any objections or responses to the Special
10 Interrogatories. (Khos. Decl., ^ 15.) Plaintiff thereafter filed her motions to compel on Special
11 hiterrogatories. Set Five (Res. ID: 2664200) to be heard on October 18, 2022. (Id.)
12 4. Immediate Reporting of Work-Related Injuries; Training on Recognizing
13 Cumulative Trauma Injuries versus Pain/Soreness; PiaintifFs Injury;
14 Discussion of PlaintifPs Rights Under FEHA; and Work Restrictions.
15 On May 27, 2022 Plaintiff served her second set of Form Interrogatories—General
16 propounded against Defendant via email. (Khos. Decl., *\ 16; attached as Exhibit F is a tme and
17 correct copy of Plaintiff Sajida Zaman's Form Interrogatories—General, Set Two.) The
18 interrogatories were concurrently served with PlaintifPs Requests for Admissions to Defendant
19 Liqui-Box Corporation (Set One) (Khos. Decl., \ 16; attached as Exhibit G is a tme and correct
20 copy of Plaintiff Sajida Zaman's Requests for Admissions, Set One), and contained a single
21 interrogatory. No. 17.1, which required the Defendant to provide all facts, witnesses, and
22 documents in support of any denial or qualified admission to the Requests for Admissions. (Khos.
23 Decl., 116; see Exhibit F.)
24 The Requests for Admissions themselves in relevant part asked Defendant to admit
25 information regarding: (1) Plaintiff not being trained on the CSB immediate reporting
26 requirement; (2) not being trained on recognizing signs of cumulative trauma injuries or gradually
27 worsening symptoms such as her strained knee/hamstring muscle; (3) that PlaintifPs injury was
28 cumulative in nature caused by repeated trauma over time and not caused by a single event
MEMORANDUM OF POINTS AND AUTHORITIES
1 accident; (4) that Plaintiffs injury was not diagnosed sooner than January 3, 2019; (5) that
2 Defendant never discussed Plaintiffs rights under the FEHA during her alleged late reporting;
3 (6) that PlaintifPs work restrictions did not prohibit her from performing all ofher essential job
4 functions; (7) that the CSB policy does not require employees to immediately report all physical
5 pain until they leam their pain is connected to an injury; and (8) Plaintiff never being trained on
6 distinguishing bodily sensations such as soreness due to fatigue, from workplace injuries. (See
7 Khos. Decl., If 17; see Exhibit G, Requests for Admissions Nos. 1 through 23.)
8 Because Defendant did not timely serve responses or objections. Plaintiff thereafter filed
9 her motion to compel on Form Interrogatories—General, Set Two (Res. ID: 2656706) and motion
10 to deem admitted the Requests for Admissions, Set One (Res. ID: 2656705) to be heard on
11 September 1 2022. (Khos Decl., H 18.)
12 D. Defendant Had Possession of Responses to the Requests for Admissions But
13 Waited Five Days After Plaintiff Filed Her Opposition to Serve Them.
14 After havingfiledher Opposition to Defendant's MSJ on July 27,2022, Defendant finally
15 served its responses to Plaintiffs Requests for Admissions, Set 1 on August 1,2022. (Khos. Decl.,
16 119; attached as Exhibit H is a tme and correct copy of Defendant's Responses to Requests for
17 Admissions, Set 1.) Of course. Plaintiff never had the opportunity to rely on this discovery when
18 drafting her opposition to the MSJ. This is despite the fact that Defendant verified these
19 responses on July 25,2022, two whole days before PlaintifPs opposition was due. (See Khos.
20 Decl., 119; see verification to Exhibit H.)
21 HI. ARGUMENT
22 Pursuant to Code of Civil Procedure § 128, this Court has the power to "provide for the
23 orderly conduct of proceedings before it," and "to amend and control its process and orders so as
24 to make them conform to law and justice." (Id., subds.(a)(3), (8); see also Code Civ. Proc. §
25 166(a).) The Legislature has recognized the importance of permitting ex parte applications
26 conceming critical evidence necessary for opposing summary judgment motions. (See Code Civ.
27 Proc. § 437(c)(h).)
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 The trial court must consider all evidence set forth by the parties in a motion for summary
2 judgment or adjudication. (Code Civ. Proc. § 437c(c); San Diego Watercrafts. Inc. v. Wells Fargo
3 Bank. N.A., (2002) 102 Cal. App. 4th 308, 316.) In San Diego Watercrafts, the court noted that it
4 was an abuse of discretion for the court to disregard evidence that was clearly called to the
5 attention of the court and parties but omittedfromthe separate statement of undisputed facts. (San
6 Diego Watercrafts, 102 Cal. App. 4th at 316.) Indeed, courts must abide by the guiding principle
7 of deciding cases on their merits, and when the two policies of judicial efficiency and deciding
8 cases on the merits "collide head-on, the strong public policy favoring disposition on the merits
9 outweighs the competing policy favoring judicial efficiency." (Chavez v. 24 Hour Fitness USA,
10 Inc. (2015) 238 Cal.App.4th 632, 644.)
11 The policy underlining Code of Civil Procedure § 437c(h) is the legislative intent to allow
12 Plaintiffs an opportunity to continue the hearing to conduct necessary and critical discovery and
13 obtain further evidence to support opposition to a summary judgment motion. Even if a party does
14 not satisfy the mandatory requirements of Code of Civil Procedure § 437c(h), a motion for
15 summary judgment discovery continuance is still achievable. If the continuance is not mandatory
16 under 437c(h), "the court must determine whether the party requesting the continuance has
17 nonetheless established good cause therefor. That determination is within the court's discretion."
18 (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.)
19 The court takes into account certain factors when determining if the requesting party has
20 established good cause for a continuance, including: (1) the length of time the requesting party
21 had to oppose the motion; (2) prior continuances for the same purpose; and (3) whether the
22 evidence sought is essential to the issue to be adjudicated. (Frazee v. Seely (2002) 95 Cal.App.4th
23 627, 634; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 628; Chavez, 238
24 Cal.App.4th at 644.)
25 "[T]he interests at stake are too high to sanction the denial of a continuance without good
26 reason." (Frazee, 95 Cal.App.4th at 634.) In Chavez, the declaration submitted to seek a discovery
27 continuance "did not indicate what facts [the witness] might provide, nor why they might be
28 essential," and thus did not satisfy the 437c(h) requirements. (Chavez, 238 Cal.App.4th at 643.)
MEMORANDUM OF POINTS AND AUTHORITIES
1 However, the party nonetheless established good cause because it otherwise showed the need for
2 the witness's testimony, the case had been pending for only one year, no prior continuances had
3 been sought, and importantly, the testimony was essential to the opposition. (Id. at 643-44.)
4 A. Plaintiff Had Minimal Time to Oppose the MSJ and No Prior Continuances
5 Have Been Sought.
6 Defendant at the eleventh hour on May 18, 2022 sought ex parte relief to set a hearing
7 date of August 10,2022 for its MSJ. The MSJ was then served at the last possible minute on May
8 27, 2022, providing exactly 75 days' notice to Plaintiff, and giving her only the minimum
9 timeframe to file an opposition by the July 27, 2022 deadline. Plaintiff never sought prior
10 continuances. (Khos Decl., 120.)
11 B. The Outstanding Discovery Go to Essential Issues to be Adjudicated in the
12 MSJ.
13 1. OSHA Logs, Related Documents, and Witness/Factual Information
14 Regarding Their Drafting and Storage.
15 After Plaintiff reported her knee pain on January 3, 2019, Defendant had Plaintiff
16 complete an AS 1059 investigation report. (Id., 1 21; attached as Exhibit I is a tme and correct
17 copy ofPlaintiffs AS 1059 investigation report.) Subsequently, Defendant's Manager of Human
18 Resources Janene Whitney, along with Chief Operating Officer Andrew McLeland, Chief Human
19 Resources Officer Angela Kenyon, and Supervisor Ken Villani, all emailed one another about
20 how Plaintiffs injury would be an OSHA recordable injury for 2018, and how they would push
21 back against PlaintifTs workers compensation claim, as they were claiming PlaintifPs injury was
22 first known to Plaintiff December 3, 2018, not January 3, 2019. (Khos Decl., t 21; attached as
23 Exhibit J is a tme and correct copy of the January 3, 2019 emails between Defendant's
24 management discussing Plaintiffs work-related injury.) Defendants then used their intemal "4
25 Panel EHS Disciplinary Review" to claim Plaintiff was diagnosed with a knee and hamstring
26 sprain, and to claim Plaintiff reported her injury late, as pretextual justification for terminating
27 her employment for not reporting her injury immediately per the CSB policy. (Khos Decl., Tf 21;
28 attached as Exhibit K is a tme and correct copy ofPlaintiffs 4 Panel EHS Disciplinary Report.)
MEMORANDUM OF POINTS AND AUTHORITIES
1 Thus it is important to review how Defendant documented Plaintiffs recordable injury in
2 its OSHA logs to see whether there were any inconsistencies as to the way Defendant described
3 Plaintiffs injuries, or inconsistencies as to the date the injury was reported as recordable (i.e.
4 December 3,2018 or January 3,2019). For example, if Defendant called Plaintiffs injury a strain
5 rather than a sprain in its OSHA logs compared to its 4 Panel EHS Disciplinary Review
6 respectively, or recorded Plaintiffs injury as occurring January 3, 2019 rather than December 3,
7 2018 respectively, this would show a dispute of fact as to Defendant's motivations to recording
8 Plaintiffs injury in different ways in different documents, going to intent to discriminate and
9 Defendant's pretext in terminating PlaintifPs employment for late reporting ofher injury. (Khos
10 Decl., 122; attached as Exhibit L is a tme and correct copy ofPlaintiffs workers compensation
11 medical records dated Januaiy 3, 2019 diagnosing her with strain, not sprain, injuries; compare
12 with Exhibit K characterizing the injury as a sprain.) It is also important to see what OSHA logs,
13 AS 1059 forms, and 4 Panel EHS Disciplinary Review documents exist for other employees who
14 Defendant claims neglected to report their injuries immediately per the terms ofthe CSB policy,
15 and to compare those to employees with OSHA logs for work-related injuries where AS 1059 and
16 4 Panel EHS Disciplinary Review documents were not completed, i.e., for employees who were
17 not disciplined or terminated for reporting their injuries. This all shows Defendant's intent to
18 discriminate against injured and disabled employees such as Plaintiff by reporting different
19 versions of events between its own intemal documents versus the OSHA logs Defendant is
20 required to accurately maintain by law, while using its intemal discipline processes as pretext.
21 Good cause therefore exists for Plaintiff to seek her requested relief.
22 2. "Me Too" Evidence as to Injured Employees Reprimanded or
23 Terminated for Violating Defendant's CSB Policy.
24 Documents regarding Sacramento employees who violated Defendant's CSB policy in the
25 last 10 years, leading to their reprimand or termination of employment, are all valuable "me too"
26 evidence of disability discrimination and pretext. Plaintiff is naturally entitled to any responsive
27 documents regarding whether other employees have been intentionally targeted for reprimand,
28 discipline, and/or termination for reporting work-related injuries "late" or not "immediately"
MEMORANDUM OF POINTS AND AUTHORITIES
1 regardless of when the employee leamed that they had a work-related injury. This would also
2 tend to show that Defendant's proffered business justification for terminating Plaintiffs
3 employment, and any other employee with repetitive strain/cumulative trauma injuries who were
4 not immediately aware they had an injury to know to report it to Defendant, is pretextual. Good
5 cause therefore exists for Plaintiff to seek her requested relief.
6 3. Defendant's Safety Training/Injury Reporting Practices; Steps to
7 Accommodate Plaintiff; Defective Trolleys; Employees Missing Work
8 from Cumulative Trauma Injuries; and Diagnoses of PlaintifPs Injuries.
9 Evidence as to whether and whattypesof safety trainings Plaintiff was provided, including
10 whether such ttainings were mandatory, and/or whether Plaintiff was trained to recognize or
11 report diseases, conditions, or injuries from their signs and symptoms, and/or what documents
12 were relied on in thettainings,all go to show whether Plaintiff was indeed trained to report her
13 knee and hamstring pain per the CSB policy. If not, then Plaintiff can argue she was "set up" by
14 Defendant to be terminated for reporting her work-related injuries, showing that their policies
15 were masking intent to discriminate against employees by not training the employees on the
16 details of what to report regarding their disabilities.
17 Further, Defendant's evidence was to when Plaintiffs injury was first identified, as well
18 as what she was diagnosed with as detailed in Defendant's 4 Panel EHS Disciplinary Review,
19 would show whether Defendant knew that Plaintiff was not diagnosed with an injury until January
20 3, 2019, but in bad faith relied on the December 3, 2018 date when Plaintiff first noticed stiffness
21 but was still able to work. This would further show intent to discriminate and the proffered
22 business justification to be pretextual.
23 Further evidence as to all steps Defendant took to evaluate modified work duties to
24 accommodate Plaintiff and the percentage of employees who missed work due to cumulative
25 ttauma injuries or not in the last five years would show whether Defendant respected Plaintiffs
26 accommodation rights under the FEHA, and how Defendant generallytteatedits other employees
27 suffering from injuries which were not immediately apparent.
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 Evidence as to all facts/witnesses/documents in support of Defendant's contention that
2 defectivettoUeysPlaintiff worked on were repaired would create a dispute of fact as to whether
3 defective equipment caused Plaintiffs injury, rather than Defendant's contention that Plaintiff
4 "overcompensated" when pushing the trolleys as claimed in the 4 Panel EHS Disciplinary
5 Review. (See Exhibit K.) Whether Defendant contends Plaintiff injuries were caused by her
6 failure to follow Defendant's instmctions provided in her training on proper operation of mega
7 tote carts, and all facts supporting Defendant's contention that Plaintiffs actions leading to her
8 injuries were inconsistent with anyttainingsprovided, would show whether Plaintiffs injuries
9 were caused because of her own negligence or insubordination. Good cause therefore exists for
10 Plaintiff to seek her requested relief
11 4. Defendant's Responses to Requests for Admissions Set 1 Have Created
12 New Disputes of Fact.
13 Defendant's responses to Request Nos. 2, 3, 12, and 13 are germane here. Defendants now
14 concede that their injury reporting policy requires employees to immediately report any and all
15 sensations of pain regardless of whether Plaintiff ever learns her pain is from an injury, much less
16 a workplace injury. Such is the only possible meaning of their verified denials that their CSB
17 policy (1) "did not require Plaintiffto report pain unless and until Plaintiff identified her pain as
18 connected to a workplace injury." (Response to Requests for Admissions, Set 1, No. 13) and (2)
19 did not require employees to "immediately report all physical pain, unless and until the employee
20 learns that the pain is connected to an actual injury" (Id., No. 12) (Khos. Decl., If 23; see Exhibit
21 H.) This reveals that terminations under the CSB policy only require an injury itself, regardless
22 of any failure to report, since even employees who are ignorant of their injury must immediately
23 report it.
24 Worse, Defendant admits it "never trained" employees that they "must" report injuries
25 regardless ofher knowledge of them. (Response to Requests for Admissions, Set 1, No. 2.) (Khos.
26 Decl., ^ 24; see Exhibit H.) Thus, terminations only require injury, not a failure to report an
27 injury. Defendant knew that tme policy and knew also that Plaintiff was ignorant of the same. So,
28
MEMORANDUM OF POINTS AND AUTHORITIES
1 by the time any of Defendant's employees have any reason to suspect they are injured at all, not
2 only would they reasonably fear that no report is timely, their fear is absolutely tme.
3 This is especially tme as to "cumulative injuries" that occur as "repetitive mentally or
4 physically traumatic activities extending over a period of time." (Labor Code § 3208.1), as
5 Defendant now admits it never trained employees in how to recognize early signs of such
6 cumulativettaumainjuries such as a strained knee or a strained hamstring muscle. (Response to
7 Requests for Admissions, Set 1, No. 3). (Khos. Decl., | 25; see Exhibit H.) All of this raises
8 further disputes of fact as to Defendant's intent to discriminate, using its CSB "immediate
9 reporting" policy to promote workplace safety as pretext. Good cause therefore exists for Plaintiff
10 to seek her requested relief
11 C. The Outstanding Discovery Justifies an Order Specially Setting Hearings on
12 the Discovery Motions and an Order Continuing the MSJ Hearing by 60 Days
13 for Plaintiff to Provide Supplemental Briefing to Prevent Irreparable Harm.
14 Plaintiff suffers irreparable harm if she is not afforded the opportunity to use the additional
15 discovery Defendant has in bad faith been withholding to provide supplemental briefing to oppose
16 the MSJ, as the altemative would be potential dismissal of her entire case. Given that Plaintiff
17 already has discovery motions set for September 1, 2022, Plaintiff proposes all ofher other
18 discovery motions set for October 18, 2022, be moved to September 1, 2022, or having all
19 discovery motions set for even earlier to August 29, 2022, which will still provide Defendant 16
20 court days' notice to oppose the motions. All motions have been filed and served. (Khos Decl., If
21 26.) In tandem with this request, the MSJ hearing must also be continued 60 days out to October
22 10, 2022. This would allow Plainttff time to have her discovery motions heard. Defendant to
23 promptly serve responses and any responsive documents to the extent the motions are granted,
24 and for Plaintiff to review the discovery to provide supplemental briefing to oppose the MSJ.
25 Altematively, should this Court not continue the MSJ hearing date. Plaintiff requests that
26 her discovery motions scheduled for October 18, 2022, be set for September 1, 2022, before the
27 September 12,2022 trial date.
28 ///
MEMORANDUM OF POINTS AND AUTHORITIES
1 IV. CONCLUSION
2 Given the foregoing. Plaintiff respectfully requests this Court issue an Order (1) specially
3 setting hearings for Plaintiffs discovery motions to be heard on any date between August 29,
4 2022 to September 1, 2022, inclusive; (2) continuing out the MSJ hearing date by sixty (60) days
5 to October 10, 2022; and (3) granting Plaintiff leave to file supplemental briefing in opposition
6 to Defendant's MSJ. Altematively, should this Court not continue the MSJ hearing date. Plaintiff
7 requests that her discovery motions scheduled for October 18, 2022 be set for September 1, 2022.
8 Dated: August 4, 2022 LIBERTY MAN LAW, P.C.
9 FALAKASSA LAW, P.C.
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Arash S. Khosrowshahi
12 Joshua S. Falakassa
Attomeys for Plaintiff Sajida Zaman
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MEMORANDUM OF POINTS AND AUTHORITIES
Preview
FILED/EMOOBSE[) 1 JOSHUA S. FALAKASSA (SBN: 295045) FALAKASSA LAW, P.C. AUG 0 h 2022 2 1901 Avenue ofthe Stars Suite # 450 By: E Macdonald 3 Los Angeles, Califomia 90067 Deputy Clerk Tel.: (818) 456-6168; Fax: (888) 505-0868 4 Email: josh@falakassalaw.com 5 ARASH S. KHOSROWSHAHI (SBN: 293246) 6 LIBERTY MAN LAW, P.C. 1010 F Street, Ste. 300 7 Sacramento, Califomia 95814 Tel.: (916) 573-0469; Fax: (866) 700-0787 8 Email: ash@libertymaniaw.com 9 Attomeys for Plaintiff, SAHDA ZAMAN 10 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SACRAMENTO BY FAX 13 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121 14 MEMORANDUM OF POINTS AND Plaintiff, 15 AUTHORITIES IN SUPPORT OF EX vs. PARTE APPLICATION FOR ORDER (1) 16 SPECIALLY SETTING HEARINGS ON LIQUI-BOX CORPORATION, and DOES 1 DISCOVERY MOTIONS; (2) 17 through 20, inclusive. CONTINUING MOTION FOR 18 SUMMARY JUDGMENT/SUMMARY Defendants. ADJUDICATION HEARING; AND (3) 19 FOR LEAVE TO FILE ADDITIONAL EVIDENCE IN OPPOSITION TO 20 DEFENDANT'S MOTION FOR 21 SUMMARY JUDGMENT/SUMMARY ADJUDICATION 22 Date: August 5, 2022 23 Time: 9:00a.m. Dept.: 53 24 Trial Date: September 12, 2022 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 I. INTRODUCTION 2 Defendant Liqui-Box Corporation ("Defendant") sought ex parte relief to schedule a 3 hearing date for its Motion for Summary Judgment and/or Summary Adjudication of Issues 4 ("MSJ"), thereafter providing Plaintiff Sajida Zaman ("Plaintiff') minimal time to oppose the 5 MSJ. In that time. Plaintiff served seven separate sets of written discovery on a host of topics, 6 including but not limited to (1) Defendant's OSHA logs for documenting recordable work-related 7 injuries; (2) "Me Too" evidence as to how other injured employees were treated when reporting 8 their injuries; (3) Defendant's safety and injury reporting trainings; (4) the status of equipment 9 which Plaintiff allege she injured herself with when working; (5) steps undertaken to 10 accommodate Plaintiff for her work-related disabilities; (6) Defendant's knowledge ofPlaintiffs 11 injuries and diagnoses, and so on. 12 All of these written discovery requests were germane to oppose the MSJ-however, 13 Defendant either only served objections to the requests, or never bothered to respond at all. After 14 PlaintifPs several efforts to meet and confer and come to resolutions, Defendant remained 15 steadfast in its refiisal to provide any discovery which was essential to oppose the MSJ. This 16 forced Plaintiff to file seven discovery motions seeking sanctions and oppose the MSJ with what 17 evidence she had available. But after Plaintiff filed her opposition. Defendant then served 18 responses to one set of discovery requests which provided facts essential to oppose the MSJ, even 19 though Defendant sat on the verified responses for two days before PlaintifPs opposition was due. 20 Plaintiffhas good cause to be seeking ex parte relief, as she faces irreparable harm if she 21 is not granted leave to provide supplemental briefing to oppose the MSJ based on the outstanding 22 discovery disputes. The discovery all goes toward evidence essential to opposing the MSJ and 23 raise fiirther disputes of fact not previously available to Plaintiff due to Defendant's obstruction. 24 Plaintiff thus respectfully requests this Court issue an Order (1) specially setting hearings 25 for PlaintifPs discovery motions to be heard on any date between August 29,2022 to September 26 1, 2022, inclusive; (2) continuing out the MSJ hearing date by sixty (60) days to October 10, 27 2022; and (3) granting Plaintiff leave to file supplemental briefing in opposition to Defendant's 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 MSJ. Altematively, should this Court not continue the MSJ hearing date. Plaintiff requests that 2 her discovery motions scheduled for October 18, 2022 be set for September 1, 2022. 3 II. STATEMENT OF FACTS. 4 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While 5 on the Job but was Terminated for Allegedly Not Reporting Immediately. 6 Plaintiff was a 16-year employee of Defendant, working as an Inspector-Packer. On or 7 about December 3, 2018, Plaintiff felt a pull on her left knee while working for Defendant, which 8 over time went Irom stiffness to consistent and considerable pain. (First Amended Complaint for 9 Damages and Injunctive Relief ["FAC"], ^ 7.) Plaintiff first became aware her pain was a work- 10 related knee injury on or about January 3, 2019, which was when she reported it to Defendant to 11 seek treatment and begin her worker's compensation claim, as she could no longer work due to 12 her pain, making her injury a disability limiting a major life activity. (FAC, 17.) 13 Thereafter, Plaintiff was instructed by Defendant to go home until fiirther notice but was 14 then summoned back for a work meeting on January 10,2019. (Id., ^ 9.) At the meeting Plaintiff's 15 16 years of employment was terminated because she allegedly "neglected to report [her] injury 16 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in 17 relevant part, "Immediately report all incidents to your supervisor, management team member no 18 matter how minor or without exception," and that "[a]ny violation of these Critical Safety 19 Behaviors will result in immediate termination of employment." (Id.) 20 Based on these allegations, Plaintiff alleges she was terminated in retaliation because of 21 her work-related injuries/disabilities and need for accommodation under the FEHA, with the CSB 22 policy used as pretext. (Id., 1| 10.) 23 B. Defendant's Counsel Seeks Ex Parte Relief at the Last Minute to Set a 24 Hearing for Defendant's Motion for Summary Judgnient. 25 Defendant at the eleventh hour on May 18, 2022 sought ex parte relief to set a hearing 26 date of August 10, 2022 for its MSJ. (Declaration of Arash S. Khosrowshahi in Support of Ex 27 Parte Application ["Khos. Decl."], f 3.) After this Court granted relief, the MSJ was then served 28 at the last possible minute on May 27, 2022, providing exactly 75 days' notice to Plaintiff, and MEMORANDUM OF POINTS AND AUTHORITIES 1 giving her only the minimal time to file an opposition by the July 27,2022 deadline. (Khos. Decl., 2 13.) 3 C. Plaintiff Diligently Served Discovery Regarding Essential Issues to be 4 Adjudicated in the MSJ, But Defendant Stonewalled Production of Any 5 Discoverv During PlaintifPs Time to Oppose tbe MSJ, 6 1. OSHA Logs, Related Documents, and Witness/Factual Information 7 Regarding Their Drafting and Storage. 8 Per 29 CFR § 1904.35(b)(2), employers must provide former employees and their 9 authorized representatives all retained OSHA injury and illness records within the next business 10 day without redactions. (Id., subds. (b)(2)(iii)-(v).) After Plaintiff requested Defendant's OSHA 11 logs via letter citing the regulation above. Defendant's counsel delayed production by several 12 days, only producing documents relevant to Plaintiffs employment, rather than all "current or 13 stored" logs Defendant has in its possession, custody, or control. (Khos Decl., T| 4.) 14 Plaintiff thereafter served her Requests for Production of Documents, Set Four, on or 15 about May 18, 2022, asking for all documents compromising Defendant's (1) OSHA 300 16 (Request for Production of Documents, Set Four, No. 1), (2) OSHA 300a (Id., No. 2), and (3) 17 OSHA 301 (Id., No.3) at its Sacramento facility where Plaintiff worked. (Khos Decl., \ 5; attached 18 as Exhibit A is a tme and correct copy of Plaintiff Sajida Zaman's Requests for Production of 19 Documents to Defendant LiquiBox, Inc., Set Four (4).) 20 Plaintiff that same day also served her Special Interrogatories, Set Three, on or about May 21 18,2022, asking (1) identifying information of persons responsible for drafting OSHA 300, 300a, 22 and 301 logs ("OSHA logs") at Defendant's Sacramento facility (Special Interrogatory, Set 23 Three, No. 30); (2) identifying information of persons responsible for storing OSHA logs at 24 Defendant's Sacramento facility (Id., No. 31); (3) identifying information of persons with 25 knowledge of Defendant's procedures relating to the drafting and storing of the OSHA logs at the 26 Sacramento facility (Id., No. 32); and (4) to describe where the OSHA logs are stored at the 27 Sacramento facility (Id., No. 33). (Khos Decl., ^ 6; attached as Exhibit B is a tme and correct 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 copy of Plaintiff Sajida Zaman's Special Interrogatories to Defendant Liqui-Box Corporation (Set 2 Three).) 3 On or about June 21, 2022, rather than provided responses. Defendant continued its 4 obstmction by serving only meritless, boilerplate objections to Plaintiffs requests for documents 5 and interrogatories. (Khos Decl., ^ 7.) Plaintiff met and conferred as to the objections in attempts 6 to obtain responses/documents and informally resolve the issues, but Defendant never provided 7 responses or documents. (Id.) 8 Plaintiff thereafter filed her motions to compel on Special Interrogatories, Set Three (Res. 9 ID: 2664201) and Requests for Production of Documents, Set Four (Res. ID: 2664202) to be 10 heard on October 18, 2022. (Khos Decl., t 8.) 11 2. "Me Too" Evidence as to Injured Employees Reprimanded or .12 Terminated for Violating Defendant's CSB Policy. 13 On or about May 24, 2022, Plaintiff propounded her fifth set of Requests for Production 14 of Documents to Defendant. (Khos. Decl., ^ 9; attached as Exhibit C is a tme and correct copy 15 of Plaintiff Sajida Zaman's Requests for the Inspection and Production of Documents and Other 16 Things to Defendant Liqui-Box Corporation (Set Five).) Notably, Request for Production No. 1 17 (the only propounded request in the set) asked for: "All documents YOU identified in YOUR 18 responses to Plaintiff Sajida Zaman's Special Interrogatories to Defendant Liqui-Box Corporation 19 Set Four (4)." (Khos. Decl., ^ 9; see Exhibit C.) 20 The referenced Special Interrogatories, Set Four, were also served that same day, and in 21 sum ask for the following information: (1) the identifying information of employees who worked 22 at Defendant's Sacramento facility who (a) Defendant contends violated the CSB Policy in the 23 last 10 years (Special Interrogatory, Set 4, No. 34); (b) Defendant reprimanded for violating the 24 CSB policy in the last 10 years (Id., No. 35); (c) Defendant terminated for violating the CSB 25 policy m the last 10 years (Id., No. 36); (2)(a) identifying information of each person with 26 knowledge of each reprimand (Id., No. 37); (b) all facts which supported each reprimand (Id., No. 27 38); (c) all documents containing information Defendant relied on in the decision to reprimand 28 (Id., No. 39); (3)(a) identifying information of each person with knowledge of each termination MEMORANDUM OF POINTS AND AUTHORITIES 1 (Id., No. 40); (b) all facts which supported each tennination (Id., No. 41); (c) all documents 2 containing information Defendant relied on in the decision to termination (Id., No. 42). (Khos. 3 Decl., 110; attached as Exhibit D is a tme and correct copy of Plaintiff Sajida Zaman's Special 4 Interrogatories to Defendant Liqui-Box Corporation (Set Four).) 5 Rather than respond, on or about June 27, 2022 Defendant provided only boilerplate 6 objections to the requests as well as the interrogatories. (Khos. Decl., 1| 11.) Plaintiff met and 7 conferred as to the objections in attempts to obtain responses/documents, and informally resolve 8 the issues, but Defendant never provided responses or documents. (M) 9 Plaintiff thereafter filed her motions to compel on Special Interrogatories, Set Four (Res. 10 ID: 2664199) and Requests for Production of Documents, Set Five (Res. ID: 2664198) to be heard 11 on October 18, 2022. (Khos Decl., 112.) 12 3. Defendant's Safety Training/Injury Reporting Practices; Steps to 13 Accommodate Plaintiff; Defective Trolleys; Employees Missing Work 14 from Cumulative Trauma Injuries; and Diagnoses of Plaintiff's Injuries. 15 On May 27, 2022 Plaintiff served her fifth set of Special Interrogatories propounded 16 against Defendant via email. (Khos. Decl., \ 13; attached as Exhibit E is a tme and correct copy 17 of Plaintiff Sajida Zaman's Special Interrogatories to Defendant Liqui-Box Corporation (Set 18 Five).) 19 The Special Interrogatories contained 22 separate interrogatories in relevant part asking 20 for: (1) safety trainings Defendant contends it provided Plaintiff and when they occurred (Special 21 Interrogatories, Nos. 45-46); (2) all steps Defendant took to evaluate modified work duties to 22 accommodate Plaintiff (Id., No. 48); (3) the date Plaintiffs injury was first identified (Id., No. 23 49); (4) the percentage of employees who missed work due to cumulative trauma injuries or not 24 in the last five years (Id., Nos. 50-51.); (5) all facts/witnesses/documents in support of 25 Defendant's contention that defective trolleys Plaintiff worked on were repaired (Id., No. 52-54); 26 (6) all facts/documents in support of the contention that Defendant trained employees to identify 27 disease, condition or injury from their signs and symptoms (Id., Nos. 56-57); (7) all 28 facts/witnesses/document in support of the contention that Plaintiff was diagnosed with a left knee MEMORANDUM OF POINTS AND AUTHORITIES 1 and hamstring pain in relation to her 4 Panel EHS Disciplinary Review. (Id. Nos. 58-59); (8) 2 whether Defendant contends Plaintiff injuries were caused by her failure to follow Defendant's 3 instmctions provided in her training on proper operation of mega tote carts, and all supporting 4 facts (Id., Nos. 60-61); (9) whether attendance for such mega tote cart trainings were mandatory 5 (Id., No. 62); (10) the identities of all persons present for mega tote cart trainings, as well as all 6 documents reflecting the matters presented at the trainings (Id., Nos. 63-64); and (11) all facts 7 supporting Defendant's contention that PlaintifPs actions leading to her injuries were inconsistent 8 with anyttainingsprovided. (Id., No. 65.) (Khos. Decl., ^ 14; see Exhibit E.) 9 However, Defendant never served any objections or responses to the Special 10 Interrogatories. (Khos. Decl., ^ 15.) Plaintiff thereafter filed her motions to compel on Special 11 hiterrogatories. Set Five (Res. ID: 2664200) to be heard on October 18, 2022. (Id.) 12 4. Immediate Reporting of Work-Related Injuries; Training on Recognizing 13 Cumulative Trauma Injuries versus Pain/Soreness; PiaintifFs Injury; 14 Discussion of PlaintifPs Rights Under FEHA; and Work Restrictions. 15 On May 27, 2022 Plaintiff served her second set of Form Interrogatories—General 16 propounded against Defendant via email. (Khos. Decl., *\ 16; attached as Exhibit F is a tme and 17 correct copy of Plaintiff Sajida Zaman's Form Interrogatories—General, Set Two.) The 18 interrogatories were concurrently served with PlaintifPs Requests for Admissions to Defendant 19 Liqui-Box Corporation (Set One) (Khos. Decl., \ 16; attached as Exhibit G is a tme and correct 20 copy of Plaintiff Sajida Zaman's Requests for Admissions, Set One), and contained a single 21 interrogatory. No. 17.1, which required the Defendant to provide all facts, witnesses, and 22 documents in support of any denial or qualified admission to the Requests for Admissions. (Khos. 23 Decl., 116; see Exhibit F.) 24 The Requests for Admissions themselves in relevant part asked Defendant to admit 25 information regarding: (1) Plaintiff not being trained on the CSB immediate reporting 26 requirement; (2) not being trained on recognizing signs of cumulative trauma injuries or gradually 27 worsening symptoms such as her strained knee/hamstring muscle; (3) that PlaintifPs injury was 28 cumulative in nature caused by repeated trauma over time and not caused by a single event MEMORANDUM OF POINTS AND AUTHORITIES 1 accident; (4) that Plaintiffs injury was not diagnosed sooner than January 3, 2019; (5) that 2 Defendant never discussed Plaintiffs rights under the FEHA during her alleged late reporting; 3 (6) that PlaintifPs work restrictions did not prohibit her from performing all ofher essential job 4 functions; (7) that the CSB policy does not require employees to immediately report all physical 5 pain until they leam their pain is connected to an injury; and (8) Plaintiff never being trained on 6 distinguishing bodily sensations such as soreness due to fatigue, from workplace injuries. (See 7 Khos. Decl., If 17; see Exhibit G, Requests for Admissions Nos. 1 through 23.) 8 Because Defendant did not timely serve responses or objections. Plaintiff thereafter filed 9 her motion to compel on Form Interrogatories—General, Set Two (Res. ID: 2656706) and motion 10 to deem admitted the Requests for Admissions, Set One (Res. ID: 2656705) to be heard on 11 September 1 2022. (Khos Decl., H 18.) 12 D. Defendant Had Possession of Responses to the Requests for Admissions But 13 Waited Five Days After Plaintiff Filed Her Opposition to Serve Them. 14 After havingfiledher Opposition to Defendant's MSJ on July 27,2022, Defendant finally 15 served its responses to Plaintiffs Requests for Admissions, Set 1 on August 1,2022. (Khos. Decl., 16 119; attached as Exhibit H is a tme and correct copy of Defendant's Responses to Requests for 17 Admissions, Set 1.) Of course. Plaintiff never had the opportunity to rely on this discovery when 18 drafting her opposition to the MSJ. This is despite the fact that Defendant verified these 19 responses on July 25,2022, two whole days before PlaintifPs opposition was due. (See Khos. 20 Decl., 119; see verification to Exhibit H.) 21 HI. ARGUMENT 22 Pursuant to Code of Civil Procedure § 128, this Court has the power to "provide for the 23 orderly conduct of proceedings before it," and "to amend and control its process and orders so as 24 to make them conform to law and justice." (Id., subds.(a)(3), (8); see also Code Civ. Proc. § 25 166(a).) The Legislature has recognized the importance of permitting ex parte applications 26 conceming critical evidence necessary for opposing summary judgment motions. (See Code Civ. 27 Proc. § 437(c)(h).) 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 The trial court must consider all evidence set forth by the parties in a motion for summary 2 judgment or adjudication. (Code Civ. Proc. § 437c(c); San Diego Watercrafts. Inc. v. Wells Fargo 3 Bank. N.A., (2002) 102 Cal. App. 4th 308, 316.) In San Diego Watercrafts, the court noted that it 4 was an abuse of discretion for the court to disregard evidence that was clearly called to the 5 attention of the court and parties but omittedfromthe separate statement of undisputed facts. (San 6 Diego Watercrafts, 102 Cal. App. 4th at 316.) Indeed, courts must abide by the guiding principle 7 of deciding cases on their merits, and when the two policies of judicial efficiency and deciding 8 cases on the merits "collide head-on, the strong public policy favoring disposition on the merits 9 outweighs the competing policy favoring judicial efficiency." (Chavez v. 24 Hour Fitness USA, 10 Inc. (2015) 238 Cal.App.4th 632, 644.) 11 The policy underlining Code of Civil Procedure § 437c(h) is the legislative intent to allow 12 Plaintiffs an opportunity to continue the hearing to conduct necessary and critical discovery and 13 obtain further evidence to support opposition to a summary judgment motion. Even if a party does 14 not satisfy the mandatory requirements of Code of Civil Procedure § 437c(h), a motion for 15 summary judgment discovery continuance is still achievable. If the continuance is not mandatory 16 under 437c(h), "the court must determine whether the party requesting the continuance has 17 nonetheless established good cause therefor. That determination is within the court's discretion." 18 (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) 19 The court takes into account certain factors when determining if the requesting party has 20 established good cause for a continuance, including: (1) the length of time the requesting party 21 had to oppose the motion; (2) prior continuances for the same purpose; and (3) whether the 22 evidence sought is essential to the issue to be adjudicated. (Frazee v. Seely (2002) 95 Cal.App.4th 23 627, 634; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 628; Chavez, 238 24 Cal.App.4th at 644.) 25 "[T]he interests at stake are too high to sanction the denial of a continuance without good 26 reason." (Frazee, 95 Cal.App.4th at 634.) In Chavez, the declaration submitted to seek a discovery 27 continuance "did not indicate what facts [the witness] might provide, nor why they might be 28 essential," and thus did not satisfy the 437c(h) requirements. (Chavez, 238 Cal.App.4th at 643.) MEMORANDUM OF POINTS AND AUTHORITIES 1 However, the party nonetheless established good cause because it otherwise showed the need for 2 the witness's testimony, the case had been pending for only one year, no prior continuances had 3 been sought, and importantly, the testimony was essential to the opposition. (Id. at 643-44.) 4 A. Plaintiff Had Minimal Time to Oppose the MSJ and No Prior Continuances 5 Have Been Sought. 6 Defendant at the eleventh hour on May 18, 2022 sought ex parte relief to set a hearing 7 date of August 10,2022 for its MSJ. The MSJ was then served at the last possible minute on May 8 27, 2022, providing exactly 75 days' notice to Plaintiff, and giving her only the minimum 9 timeframe to file an opposition by the July 27, 2022 deadline. Plaintiff never sought prior 10 continuances. (Khos Decl., 120.) 11 B. The Outstanding Discovery Go to Essential Issues to be Adjudicated in the 12 MSJ. 13 1. OSHA Logs, Related Documents, and Witness/Factual Information 14 Regarding Their Drafting and Storage. 15 After Plaintiff reported her knee pain on January 3, 2019, Defendant had Plaintiff 16 complete an AS 1059 investigation report. (Id., 1 21; attached as Exhibit I is a tme and correct 17 copy ofPlaintiffs AS 1059 investigation report.) Subsequently, Defendant's Manager of Human 18 Resources Janene Whitney, along with Chief Operating Officer Andrew McLeland, Chief Human 19 Resources Officer Angela Kenyon, and Supervisor Ken Villani, all emailed one another about 20 how Plaintiffs injury would be an OSHA recordable injury for 2018, and how they would push 21 back against PlaintifTs workers compensation claim, as they were claiming PlaintifPs injury was 22 first known to Plaintiff December 3, 2018, not January 3, 2019. (Khos Decl., t 21; attached as 23 Exhibit J is a tme and correct copy of the January 3, 2019 emails between Defendant's 24 management discussing Plaintiffs work-related injury.) Defendants then used their intemal "4 25 Panel EHS Disciplinary Review" to claim Plaintiff was diagnosed with a knee and hamstring 26 sprain, and to claim Plaintiff reported her injury late, as pretextual justification for terminating 27 her employment for not reporting her injury immediately per the CSB policy. (Khos Decl., Tf 21; 28 attached as Exhibit K is a tme and correct copy ofPlaintiffs 4 Panel EHS Disciplinary Report.) MEMORANDUM OF POINTS AND AUTHORITIES 1 Thus it is important to review how Defendant documented Plaintiffs recordable injury in 2 its OSHA logs to see whether there were any inconsistencies as to the way Defendant described 3 Plaintiffs injuries, or inconsistencies as to the date the injury was reported as recordable (i.e. 4 December 3,2018 or January 3,2019). For example, if Defendant called Plaintiffs injury a strain 5 rather than a sprain in its OSHA logs compared to its 4 Panel EHS Disciplinary Review 6 respectively, or recorded Plaintiffs injury as occurring January 3, 2019 rather than December 3, 7 2018 respectively, this would show a dispute of fact as to Defendant's motivations to recording 8 Plaintiffs injury in different ways in different documents, going to intent to discriminate and 9 Defendant's pretext in terminating PlaintifPs employment for late reporting ofher injury. (Khos 10 Decl., 122; attached as Exhibit L is a tme and correct copy ofPlaintiffs workers compensation 11 medical records dated Januaiy 3, 2019 diagnosing her with strain, not sprain, injuries; compare 12 with Exhibit K characterizing the injury as a sprain.) It is also important to see what OSHA logs, 13 AS 1059 forms, and 4 Panel EHS Disciplinary Review documents exist for other employees who 14 Defendant claims neglected to report their injuries immediately per the terms ofthe CSB policy, 15 and to compare those to employees with OSHA logs for work-related injuries where AS 1059 and 16 4 Panel EHS Disciplinary Review documents were not completed, i.e., for employees who were 17 not disciplined or terminated for reporting their injuries. This all shows Defendant's intent to 18 discriminate against injured and disabled employees such as Plaintiff by reporting different 19 versions of events between its own intemal documents versus the OSHA logs Defendant is 20 required to accurately maintain by law, while using its intemal discipline processes as pretext. 21 Good cause therefore exists for Plaintiff to seek her requested relief. 22 2. "Me Too" Evidence as to Injured Employees Reprimanded or 23 Terminated for Violating Defendant's CSB Policy. 24 Documents regarding Sacramento employees who violated Defendant's CSB policy in the 25 last 10 years, leading to their reprimand or termination of employment, are all valuable "me too" 26 evidence of disability discrimination and pretext. Plaintiff is naturally entitled to any responsive 27 documents regarding whether other employees have been intentionally targeted for reprimand, 28 discipline, and/or termination for reporting work-related injuries "late" or not "immediately" MEMORANDUM OF POINTS AND AUTHORITIES 1 regardless of when the employee leamed that they had a work-related injury. This would also 2 tend to show that Defendant's proffered business justification for terminating Plaintiffs 3 employment, and any other employee with repetitive strain/cumulative trauma injuries who were 4 not immediately aware they had an injury to know to report it to Defendant, is pretextual. Good 5 cause therefore exists for Plaintiff to seek her requested relief. 6 3. Defendant's Safety Training/Injury Reporting Practices; Steps to 7 Accommodate Plaintiff; Defective Trolleys; Employees Missing Work 8 from Cumulative Trauma Injuries; and Diagnoses of PlaintifPs Injuries. 9 Evidence as to whether and whattypesof safety trainings Plaintiff was provided, including 10 whether such ttainings were mandatory, and/or whether Plaintiff was trained to recognize or 11 report diseases, conditions, or injuries from their signs and symptoms, and/or what documents 12 were relied on in thettainings,all go to show whether Plaintiff was indeed trained to report her 13 knee and hamstring pain per the CSB policy. If not, then Plaintiff can argue she was "set up" by 14 Defendant to be terminated for reporting her work-related injuries, showing that their policies 15 were masking intent to discriminate against employees by not training the employees on the 16 details of what to report regarding their disabilities. 17 Further, Defendant's evidence was to when Plaintiffs injury was first identified, as well 18 as what she was diagnosed with as detailed in Defendant's 4 Panel EHS Disciplinary Review, 19 would show whether Defendant knew that Plaintiff was not diagnosed with an injury until January 20 3, 2019, but in bad faith relied on the December 3, 2018 date when Plaintiff first noticed stiffness 21 but was still able to work. This would further show intent to discriminate and the proffered 22 business justification to be pretextual. 23 Further evidence as to all steps Defendant took to evaluate modified work duties to 24 accommodate Plaintiff and the percentage of employees who missed work due to cumulative 25 ttauma injuries or not in the last five years would show whether Defendant respected Plaintiffs 26 accommodation rights under the FEHA, and how Defendant generallytteatedits other employees 27 suffering from injuries which were not immediately apparent. 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 Evidence as to all facts/witnesses/documents in support of Defendant's contention that 2 defectivettoUeysPlaintiff worked on were repaired would create a dispute of fact as to whether 3 defective equipment caused Plaintiffs injury, rather than Defendant's contention that Plaintiff 4 "overcompensated" when pushing the trolleys as claimed in the 4 Panel EHS Disciplinary 5 Review. (See Exhibit K.) Whether Defendant contends Plaintiff injuries were caused by her 6 failure to follow Defendant's instmctions provided in her training on proper operation of mega 7 tote carts, and all facts supporting Defendant's contention that Plaintiffs actions leading to her 8 injuries were inconsistent with anyttainingsprovided, would show whether Plaintiffs injuries 9 were caused because of her own negligence or insubordination. Good cause therefore exists for 10 Plaintiff to seek her requested relief 11 4. Defendant's Responses to Requests for Admissions Set 1 Have Created 12 New Disputes of Fact. 13 Defendant's responses to Request Nos. 2, 3, 12, and 13 are germane here. Defendants now 14 concede that their injury reporting policy requires employees to immediately report any and all 15 sensations of pain regardless of whether Plaintiff ever learns her pain is from an injury, much less 16 a workplace injury. Such is the only possible meaning of their verified denials that their CSB 17 policy (1) "did not require Plaintiffto report pain unless and until Plaintiff identified her pain as 18 connected to a workplace injury." (Response to Requests for Admissions, Set 1, No. 13) and (2) 19 did not require employees to "immediately report all physical pain, unless and until the employee 20 learns that the pain is connected to an actual injury" (Id., No. 12) (Khos. Decl., If 23; see Exhibit 21 H.) This reveals that terminations under the CSB policy only require an injury itself, regardless 22 of any failure to report, since even employees who are ignorant of their injury must immediately 23 report it. 24 Worse, Defendant admits it "never trained" employees that they "must" report injuries 25 regardless ofher knowledge of them. (Response to Requests for Admissions, Set 1, No. 2.) (Khos. 26 Decl., ^ 24; see Exhibit H.) Thus, terminations only require injury, not a failure to report an 27 injury. Defendant knew that tme policy and knew also that Plaintiff was ignorant of the same. So, 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 by the time any of Defendant's employees have any reason to suspect they are injured at all, not 2 only would they reasonably fear that no report is timely, their fear is absolutely tme. 3 This is especially tme as to "cumulative injuries" that occur as "repetitive mentally or 4 physically traumatic activities extending over a period of time." (Labor Code § 3208.1), as 5 Defendant now admits it never trained employees in how to recognize early signs of such 6 cumulativettaumainjuries such as a strained knee or a strained hamstring muscle. (Response to 7 Requests for Admissions, Set 1, No. 3). (Khos. Decl., | 25; see Exhibit H.) All of this raises 8 further disputes of fact as to Defendant's intent to discriminate, using its CSB "immediate 9 reporting" policy to promote workplace safety as pretext. Good cause therefore exists for Plaintiff 10 to seek her requested relief 11 C. The Outstanding Discovery Justifies an Order Specially Setting Hearings on 12 the Discovery Motions and an Order Continuing the MSJ Hearing by 60 Days 13 for Plaintiff to Provide Supplemental Briefing to Prevent Irreparable Harm. 14 Plaintiff suffers irreparable harm if she is not afforded the opportunity to use the additional 15 discovery Defendant has in bad faith been withholding to provide supplemental briefing to oppose 16 the MSJ, as the altemative would be potential dismissal of her entire case. Given that Plaintiff 17 already has discovery motions set for September 1, 2022, Plaintiff proposes all ofher other 18 discovery motions set for October 18, 2022, be moved to September 1, 2022, or having all 19 discovery motions set for even earlier to August 29, 2022, which will still provide Defendant 16 20 court days' notice to oppose the motions. All motions have been filed and served. (Khos Decl., If 21 26.) In tandem with this request, the MSJ hearing must also be continued 60 days out to October 22 10, 2022. This would allow Plainttff time to have her discovery motions heard. Defendant to 23 promptly serve responses and any responsive documents to the extent the motions are granted, 24 and for Plaintiff to review the discovery to provide supplemental briefing to oppose the MSJ. 25 Altematively, should this Court not continue the MSJ hearing date. Plaintiff requests that 26 her discovery motions scheduled for October 18, 2022, be set for September 1, 2022, before the 27 September 12,2022 trial date. 28 /// MEMORANDUM OF POINTS AND AUTHORITIES 1 IV. CONCLUSION 2 Given the foregoing. Plaintiff respectfully requests this Court issue an Order (1) specially 3 setting hearings for Plaintiffs discovery motions to be heard on any date between August 29, 4 2022 to September 1, 2022, inclusive; (2) continuing out the MSJ hearing date by sixty (60) days 5 to October 10, 2022; and (3) granting Plaintiff leave to file supplemental briefing in opposition 6 to Defendant's MSJ. Altematively, should this Court not continue the MSJ hearing date. Plaintiff 7 requests that her discovery motions scheduled for October 18, 2022 be set for September 1, 2022. 8 Dated: August 4, 2022 LIBERTY MAN LAW, P.C. 9 FALAKASSA LAW, P.C. 10 11 Arash S. Khosrowshahi 12 Joshua S. Falakassa Attomeys for Plaintiff Sajida Zaman 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES