Preview
1 JANINE MENHENNET (SBN 63501)
Of Counsel CIELO & DEI VOLUNTAS PC
2 LUCIANO STANZIONE (SBN 281476)
Ls@cielolawfirm.com
3 CIELO & DEI VOLUNTAS PC
1968 S. Coast Hwy, Ste. 1415
4
Laguna Beach, CA 92651
5 Telephone: 949.556.3677
6 Attorneys for Plaintiff
Jason Christopher Toothman
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF LOS ANGELES
11
12 Case No.
13 JASON CHRISTOPHER COMPLAINT FOR DAMAGES
14 TOOTHMAN, an individual, 1. DISABILITY DISCRIMINATION
15 Plaintiff, 2. FAILURE TO ACCOMMODATE
DISABILITY
16 vs. 3. FAILURE TO ENGAGE IN THE
17 INTERACTIVE PROCESS
4. AGE DISCRIMINATION
18 RALPHS GROCERY COMPANY, an 5. HARASSMENT, HOSTILE WORK
ENVIRONMENT
19 Ohio Corporation, ROSIE 6. RETALIATION, REQUESTING
20 AVUNDZHYAN, an individual and ACCOMMODATION
7. RETALIATION
21 DOES 1 THROUGH 10, inclusive 8. FAILURE TO PREVENT
22 Defendants. DISCRIMINATION, HARASSMENT
AND RETALIATION
23 9. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY
24
10. UNLAWFUL RETALIATION IN
25 VIOLATION OF LABOR CODE §
1102.5
26 11. UNLAWFUL DISCRIMINATION
27 AND RETALIATION IN
VIOLATION OF LABOR CODE §
28 6310
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-1-
12. UNLAWFUL RETALIATION IN
1
VIOLATION OF LABOR CODE §
2 6311
13. FAILURE TO PAY OVERTIME AND
3 DOUBLE TIME
4 14. FAILURE TO PAY ALL WAGES
UPON TERMINATION
5
DEMAND FOR JURY TRIAL
6
7
8
9 INTRODUCTION
10 This is an action brought by Plaintiff JASON CHRISTOPHER TOOTHMAN
11 (“Plaintiff”) against RALPHS GROCERY COMPANY, an Ohio Corporation, ROSIE
12 AVUNDZHYAN, an individual, and other as of yet unnamed Defendants (hereinafter
13 collectively “Defendants”). Plaintiff seeks damages, attorneys’ fees, and costs of suit.
14 THE PARTIES
15 1. Plaintiff is a former employee of Defendants and a resident of the
16 County of Los Angeles, State of California.
17 2. Plaintiff is informed and believes, and thereon alleges that Defendant
18 RALPHS GROCERY COMPANY is an Ohio Corporation, registered to do business in
19 California, and doing business in the County of Los Angeles, State of California.
20 3. On information and belief, Defendant ROSIE AVUNDZHYAN is, and at
21 all relevant times was, a competent adult residing in Los Angeles County, California.
22 4. On information and belief, Defendant ROSIE AVUNDZHYAN at all
23 relevant times, was a director, officer, and/or managing agent of Defendant within
24 the meaning of California Labor Code section 558.1 and California Civil Code section
25 3294. On information and belief, ROSIE AVUNDZHYAN, at all relevant times,
26 exercised substantial discretion in her decision-making such that her decisions
27 ultimately determined policy of the company. On information and belief, ROSIE
28 AVUNDZHYAN, throughout the relevant liability period, subjected Plaintiff and
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-2-
1 other aggrieved employees to the unlawful working conditions described in this
2 Complaint.
3 5. At all relevant times each and every Defendant was the agent,
4 representative, employee, servant or affiliated entity of every other Defendant and,
5 in doing the acts herein alleged, each Defendant is liable and responsible to Plaintiff
6 for the acts of every other defendant.
7 6. Plaintiff is informed and believes, and on that basis alleges that, at all
8 relevant times, each such fictitiously named defendant was and is responsible in some
9 manner for the occurrences herein alleged, and that Plaintiff’s injuries and/or
10 damages were and are directly and/or proximately caused thereby. Plaintiff is
11 informed and believes, and on that basis alleges that each such fictitiously named
12 defendant is directly and/or indirectly liable for one or more of the causes of action
13 set forth herein.
14 7. Plaintiff is informed and believes and on that basis alleges that, at all
15 relevant times, each of the defendants, including each fictitiously named defendant,
16 was the agent, servant, joint venturer, authorized representative and/or employee of
17 each of the remaining defendants, and, except as provided herein, in doing the acts
18 and things hereinafter alleged, was acting within the course and scope of said agency,
19 joint venture, representation, servitude and/or employment, consent, approval, and
20 subsequent satisfaction of each of the remaining defendants. Each of the Defendants
21 were authorized and empowered by each of the other defendants to act and did act as
22 the principal, employee or agent of each of the other defendants. Plaintiff is further
23 informed and believes, and on that basis alleges, that, except as provided herein, each
24 defendant was acting within the course and scope of his/her/its authority in
25 performing the acts herein alleged, and that the acts of each defendant as alleged
26 herein were authorized and/or ratified by the other defendants.
27 ///
28 ///
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-3-
1 GENERAL ALLEGATIONS
2 8. This Court is the proper court and this action is properly filed in the
3 County of Los Angeles and in this judicial district because Defendants do business in
4 the County of Los Angeles and because Defendants’ obligations and liability arise
5 therein.
6 9. The true names and capacities, whether individual, corporate, associate,
7 or otherwise, of DOES 1 through 10 are unknown to Plaintiff, who therefore sues the
8 DOE Defendants by fictitious names. Plaintiff will amend this Complaint to show
9 their true names and capacities when they have been ascertained.
10 10. On information and belief, each and all of the acts and omissions alleged
11 herein were performed by or are attributable to all Defendants, each acting as agents
12 or employees, or under the direction and control of each of the other Defendants, and
13 that said acts and failures to act were within the course and scope of said agency,
14 employment and/or direction and control. On information and belief, Defendants
15 were and are the agents of each other.
16 11. Plaintiff further alleges that Defendants complained of herein operated
17 as a joint employer and/or integrated enterprise with another defendant or other
18 defendants, each such defendant is jointly and severally liable as an employer. In the
19 event that any defendant was acting as the alter ego of another defendant or other
20 defendants such that there is or was such a unity and identity of interest between or
21 among each and all said defendants that adherence to the legal fiction of separate
22 existence would, under the particular circumstances that exist or existed, would
23 sanction fraud or promote injustice, it would be an inequitable result to fail to
24 disregard any such separateness of legal personality.
25 12. On information and belief, Defendants DOES 1 through 10 are the
26 partners, owners, shareholders, or managers of Defendants, and were acting on
27 behalf of Defendants in the payment of wages to Plaintiff.
28 ///
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-4-
1 FACTS COMMON TO MORE THAN ONE CAUSE OF ACTION
2 13. Plaintiff worked for Defendants from around December 2023 to
3 February 2, 2024, initially as a Cook in the Deli Department. Throughout his
4 employment, Plaintiff was a good performer, and was assigned more tasks and
5 different responsibilities by Defendants.
6 14. After beginning to work for Defendant’s, Plaintiff noticed multiple
7 unhealthy food handling practices, including but not limited to: employees not
8 washing their hands before manipulating food; cross contamination; raw food being
9 mixed with cooked food; liquid emanating from chickens and other foods
10 contaminating the area and possibly other foods; numerous other unsafe practices; a
11 general lack of care for customer’s health and safety.
12 15. Plaintiff complained to Defendants repeatedly about, including but not
13 limited to: mishandling of the food; food being sent out for customers consumption
14 that could be dangerous/unhealthy; a general unhealthy work environment;
15 employees not washing their hands before manipulating food; cross contamination;
16 raw food being mixed with cooked food; liquid emanating from chickens and other
17 foods contaminating the area and possibly other foods; numerous other unsafe
18 practices; a general lack of care for customer’s health and safety; Defendants
19 fabricating issues about his performance after complaining; Defendants not paying
20 Plaintiff all hours worked; and others.
21 16. After lodging his complaints, Plaintiff began suffering harassment and
22 retaliation from Defendants, including but not limited to: subjecting him to a higher
23 level of scrutiny; treating Plaintiff poorly; threatening Plaintiff with termination;
24 reducing Plaintiff’s hours and overtime; making comments about their ability to
25 terminate Plaintiff as he was in “probation”; unnecessarily reprimanding Plaintiff;
26 and using pretexts to suspend and terminate Plaintiff.
27 ///
28 ///
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-5-
1 17. The harassment and retaliation suffered by Plaintiff generated a hostile
2 work environment severe enough for Plaintiff to develop stress, anxiety and physical
3 manifestation of the discomfort and distress he was being subjected to. Plaintiff was
4 prescribed off work by his doctor and requested medical leave and accommodations
5 from Defendants.
6 18. Plaintiff was released back to work with restrictions related to his stress
7 related disabilities.
8 19. On or around February 2, 2024, Plaintiff was terminated.
9 20. During Plaintiff’s employment with Defendant, Plaintiff was permitted,
10 required or suffered to worked in excess of eight (8) hours in a day or forty (40) hours
11 in a week without receiving all earned overtime and double time pay for all overtime
12 and double time hours worked. Defendant ROSIE AVUNDZHYAN had direct control
13 of Plaintiff’s overtime, clock in and clock out times, and related aspects of Plaintiff’s
14 records.
15 21. Plaintiff filed an administrative complaint with the California Civil
16 Rights Department. On April 21, 2024. The Civil Rights Department issued Plaintiff
17 a right to sue letter, attached here as Exhibit A.
18 FIRST CAUSE OF ACTION
19 (Disability Discrimination – Violation of Govt. Code §12940(a))
20 (Plaintiff against All Defendants
21 Except Defendant ROSIE AVUNDZHYAN)
22 22. Plaintiff restates and incorporates by reference each and every one of
23 the above allegations as though they were fully set forth herein.
24 23. At all times relevant to this Complaint, the Fair Employment and
25 Housing Act (“FEHA”) codified in Government Code §12900 et seq. was in full force
26 and effect and makes it unlawful for an employer to discriminate against an employee
27 because of the employee’s actual or perceived disability/medical condition.
28 24. Pursuant to Government Code §§ 12926 and 12926.1, Plaintiff has an
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-6-
1 actual or perceived disability, was limited in major life activities, had a record of a
2 disability, and was regarded as or treated as having a disability by Defendants.
3 25. Defendants engaged in unlawful employment practices in violation of
4 the FEHA as described herein.
5 26. Plaintiff is informed and believes and thereon alleges that the actual or
6 perceived disability was a motivating factor in Defendants' termination of Plaintiff’s
7 employment.
8 27. As a proximate result of the wrongful conduct of Defendants, and each
9 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
10 and other employment benefits in an amount according to proof at the time of trial.
11 28. As a proximate result of the wrongful conduct of Defendants, and each
12 of them, Plaintiff has suffered emotional distress, physical manifestations of
13 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
14 general damages, in an amount according to proof at the time of trial.
15 29. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
16 to issue a judicial determination of the rights and duties of the parties. A judicial
17 declaration is necessary and appropriate such that Defendants may also be aware of
18 its obligations under the law to not engage in discriminatory practices. Plaintiff
19 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
20 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
21 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
22 30. The actions of Defendants as alleged herein were carried out with
23 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
24 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
25 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
26 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
27 conduct described herein was engaged in by officers, directors, and/or managing
28 agents for the Defendant or ratified by officers, directors, and/or managing agents.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-7-
1 31. Plaintiff has incurred and continues to incur attorneys' fees and legal
2 expenses in an amount according to proof at the time of trial.
3 SECOND CAUSE OF ACTION
4 (Failure to Accommodate Disability – Govt. Code §12940(m))
5 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN)
6 32. Plaintiff restates and incorporates by reference each and every one of
7 the above allegations as though they were fully set forth herein.
8 33. Government Code §12940(m) provides that it is unlawful for an
9 employer to fail to make a reasonable accommodation for the actual or perceived
10 disability of an employee.
11 34. Defendants failed to make reasonable accommodations for Plaintiff's
12 actual or perceived disability.
13 35. As a proximate result of the wrongful conduct of Defendants, and each
14 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
15 and other employment benefits in an amount according to proof at the time of trial.
16 36. As a proximate result of the wrongful conduct of Defendants, and each
17 of them, Plaintiff has suffered emotional distress, physical manifestations of
18 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
19 general damages, in an amount according to proof at the time of trial.
20 37. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
21 to issue a judicial determination of the rights and duties of the parties. A judicial
22 declaration is necessary and appropriate such that Defendants may also be aware of
23 its obligations under the law to not engage in discriminatory practices. Plaintiff
24 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
25 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
26 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
27 38. The actions of Defendants as alleged herein were carried out with
28 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-8-
1 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
2 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
3 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
4 conduct described herein was engaged in by officers, directors, and/or managing
5 agents for the Defendant or ratified by officers, directors, and/or managing agents.
6 39. Plaintiff has incurred and continues to incur attorneys' fees and legal
7 expenses in an amount according to proof at the time of trial.
8 THIRD CAUSE OF ACTION
9 (Failure to Engage in the Interactive Process - Govt. Code §12940(n))
10 (Plaintiff against All Defendants
11 Except Defendant ROSIE AVUNDZHYAN)
12 40. Plaintiff restates and incorporates by reference each and every one of
13 the above allegations as though they were fully set forth herein.
14 41. Government Code §12940(n) provides that it is unlawful for an employer
15 to fail to engage in a timely, good faith, interactive process with the employee to
16 determine effective reasonable accommodations, if any.
17 42. Defendants failed to engage in the interactive process with Plaintiff in
18 order to accommodate Plaintiff’s actual or perceived disability.
19 43. As a proximate result of the wrongful conduct of Defendants, and each
20 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
21 and other employment benefits in an amount according to proof at the time of trial.
22 44. As a proximate result of the wrongful conduct of Defendants, and each
23 of them, Plaintiff has suffered emotional distress, physical manifestations of
24 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
25 general damages, in an amount according to proof at the time of trial.
26 45. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
27 to issue a judicial determination of the rights and duties of the parties. A judicial
28 declaration is necessary and appropriate such that Defendants may also be aware of
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
-9-
1 its obligations under the law to not engage in discriminatory practices. Plaintiff
2 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
3 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
4 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
5 46. The actions of Defendants as alleged herein were carried out with
6 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
7 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
8 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
9 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
10 conduct described herein was engaged in by officers, directors, and/or managing
11 agents for the Defendant or ratified by officers, directors, and/or managing agents.
12 47. Plaintiff has incurred and continues to incur attorneys' fees and legal
13 expenses in an amount according to proof at the time of trial.
14 FOURTH CAUSE OF ACTION
15 (Age Discrimination – Govt. Code §12940(a))
16 (Plaintiff Against All Defendants
17 Except Defendant ROSIE AVUNDZHYAN)
18 48. Plaintiff restates and incorporates by reference each and every one of the
19 above allegations as though they were fully set forth herein.
20 49. The Fair Employment and Housing Act ("FEHA") codified in Government
21 Code § 12940 makes it unlawful for an employer to discriminate against an employee
22 on the basis of the employee's age.
23 50. Defendants engaged in unlawful employment practices in violation of the
24 FEHA by discriminating against Plaintiff because of his age.
25 51. As a proximate result of the wrongful conduct of Defendants, and each of
26 them, Plaintiff has suffered and continues to sustain substantial losses in earnings
27 and other employment benefits in an amount according to proof at the time of trial.
28 ///
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 10 -
1 52. As a proximate result of the wrongful conduct of Defendants, and each of
2 them, Plaintiff has suffered emotional distress, physical manifestations of emotional
3 distress as defined by Internal Revenue Code Section 104(a)(2), and other general
4 damages, in an amount according to proof at the time of trial.
5 53. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
6 to issue a judicial determination of the rights and duties of the parties. A judicial
7 declaration is necessary and appropriate such that Defendants may also be aware of
8 its obligations under the law to not engage in discriminatory practices. Plaintiff
9 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an award
10 of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. City of
11 Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
12 54. The actions of Defendants as alleged herein were carried out with malice,
13 willfulness and/or reckless indifference to the rights of Plaintiff, with full knowledge
14 of their unlawfulness, and with the intent to deprive Plaintiff of rights guaranteed
15 under the law. Plaintiff is entitled to punitive damages for the purpose of deterring
16 such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ conduct
17 described herein was engaged in by officers, directors, and/or managing agents for the
18 Defendant or ratified by officers, directors, and/or managing agents.
19 55. Plaintiff has incurred and continues to incur attorneys' fees and legal
20 expenses in an amount according to proof at the time of trial.
21 FIFTH CAUSE OF ACTION
22 (Harassment, Hostile Work Environment –
23 Violation of Cal. Gov’t Code §§ 12940(j); 12923)
24 (Against All Defendants)
25 56. Plaintiff restates and incorporates by reference each and every one of
26 the above allegations as though they were fully set forth herein.
27 57. The Fair Employment and Housing Act codified in Government Code §
28 12940 makes it unlawful for an employer to harass for engaging in protected activity.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 11 -
1 58. The Fair Employment and Housing Act codified in Government Code §
2 12923 sets forth the Legislative intent with regard to application of the laws about
3 harassment contained in the FEHA, including that harassment cases are rarely
4 appropriate for disposition on summary judgment.
5 59. Section 12923(a) states, among other things, that harassment creates a
6 hostile, offensive, oppressive, or intimidating work environment and deprives victims
7 of their statutory right to work in a place free of discrimination when the harassing
8 conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as
9 to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s
10 ability to perform the job as usual, or otherwise interfere with and undermine the
11 victim’s personal sense of well-being.
12 60. Section 12923(b) states, among other things, that a single incident of
13 harassing conduct is sufficient to create a triable issue regarding the existence of a
14 hostile work environment if the harassing conduct has unreasonably interfered with
15 the plaintiff’s work performance or created an intimidating, hostile, or offensive
16 working environment.
17 61. Section 12923(c) states, among other things, that the existence of a
18 hostile work environment depends upon the totality of the circumstances and a
19 discriminatory remark, even if not made directly in the context of an employment
20 decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence
21 of discrimination.
22 62. Defendants and each of them and/or their agents/employees engaged in
23 a pattern and practice of unlawful harassment in violation of California Fair
24 Employment and Housing Act of California Government Code §12940(j).
25 63. The harassment was sufficiently severe or pervasive as to alter
26 conditions of employment and to create a hostile or abusive work environment.
27 64. As a proximate result of the wrongful conduct of Defendants, and each
28 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 12 -
1 and other employment benefits in an amount according to proof at the time of trial.
2 65. As a proximate result of the wrongful conduct of Defendants, and each
3 of them, Plaintiff has suffered emotional distress, physical manifestations of
4 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
5 general damages, in an amount according to proof at the time of trial.
6 66. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
7 to issue a judicial determination of the rights and duties of the parties. A judicial
8 declaration is necessary and appropriate such that Defendants may also be aware of
9 its obligations under the law to not engage in discriminatory practices. Plaintiff
10 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
11 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
12 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
13 67. The actions of Defendants as alleged herein were carried out with
14 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
15 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
16 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
17 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
18 conduct described herein was engaged in by officers, directors, and/or managing
19 agents for the Defendant or ratified by officers, directors, and/or managing agents.
20 68. Plaintiff has incurred and continues to incur attorneys' fees and legal
21 expenses in an amount according to proof at the time of trial.
22 SIXTH CAUSE OF ACTION
23 (Retaliation, Requesting Accommodation –
24 Violation of Cal. Gov’t Code §12940(m)(2))
25 (Plaintiff against All Defendants
26 Except Defendant ROSIE AVUNDZHYAN)
27 69. Plaintiff restates and incorporates by reference each and every one of
28 the above allegations as though they were fully set forth herein.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 13 -
1 70. Plaintiff engaged in the protected activities of, but not limited to,
2 requesting a reasonable accommodation and requesting leave for an actual or
3 perceived disability.
4 71. Defendants retaliated in violation of the FEHA by engaging in unlawful
5 employment practices as described herein.
6 72. As a proximate result of the wrongful conduct of Defendants, and each
7 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
8 and other employment benefits in an amount according to proof at the time of trial.
9 73. As a proximate result of the wrongful conduct of Defendants, and each
10 of them, Plaintiff has suffered emotional distress, physical manifestations of
11 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
12 general damages, in an amount according to proof at the time of trial.
13 74. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
14 to issue a judicial determination of the rights and duties of the parties. A judicial
15 declaration is necessary and appropriate such that Defendants may also be aware of
16 its obligations under the law to not engage in discriminatory practices. Plaintiff
17 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
18 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
19 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
20 75. The actions of Defendants as alleged herein were carried out with
21 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
22 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
23 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
24 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
25 conduct described herein was engaged in by officers, directors, and/or managing
26 agents for the Defendant or ratified by officers, directors, and/or managing agents.
27 76. Plaintiff has incurred and continues to incur attorneys' fees and legal
28 expenses in an amount according to proof at the time of trial.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 14 -
1 SEVENTH CAUSE OF ACTION
2 (Retaliation – Violation of Cal. Gov’t Code §12940(h))
3 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN)
4 77. Plaintiff restates and incorporates by reference each and every one of
5 the above allegations as though they were fully set forth herein.
6 78. Plaintiff engaged in protected activities as described herein.
7 79. Defendants retaliated in violation of the FEHA as described herein.
8 80. As a proximate result of the wrongful conduct of Defendants, and each
9 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
10 and other employment benefits in an amount according to proof at the time of trial.
11 81. As a proximate result of the wrongful conduct of Defendants, and each
12 of them, Plaintiff has suffered emotional distress, physical manifestations of
13 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
14 general damages, in an amount according to proof at the time of trial.
15 82. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
16 to issue a judicial determination of the rights and duties of the parties. A judicial
17 declaration is necessary and appropriate such that Defendants may also be aware of
18 its obligations under the law to not engage in discriminatory practices. Plaintiff
19 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
20 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
21 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
22 83. The actions of Defendants as alleged herein were carried out with
23 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
24 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
25 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
26 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
27 conduct described herein was engaged in by officers, directors, and/or managing
28 agents for the Defendant or ratified by officers, directors, and/or managing agents.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 15 -
1 84. Plaintiff has incurred and continues to incur attorneys' fees and legal
2 expenses in an amount according to proof at the time of trial.
3 EIGHTH CAUSE OF ACTION
4 (Failure to Prevent Discrimination, Harassment and Retaliation –
5 Violation of Cal. Gov’t Code §12940(k))
6 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN)
7 85. Plaintiff restates and incorporates by reference each and every one of
8 the above allegations as though they were fully set forth herein.
9 86. To Plaintiff’s knowledge, no meaningful or adequate disciplinary action
10 has been taken against any employees who discriminated and/or harassed and/or
11 retaliated against Plaintiff.
12 87. In violation of Cal. Gov. Code §12940(k), Defendants and each of them,
13 and/or their agents/employees, failed to take all reasonable steps necessary to prevent
14 and investigate unlawful discrimination, harassment, and/or retaliation from
15 occurring, and to remedy such discrimination, harassment, and/or retaliation.
16 88. As a proximate result of the wrongful conduct of Defendants, and each
17 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
18 and other employment benefits in an amount according to proof at the time of trial.
19 89. As a proximate result of the wrongful conduct of Defendants, and each
20 of them, Plaintiff has suffered emotional distress, physical manifestations of
21 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
22 general damages, in an amount according to proof at the time of trial.
23 90. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
24 to issue a judicial determination of the rights and duties of the parties. A judicial
25 declaration is necessary and appropriate such that Defendants may also be aware of
26 its obligations under the law to not engage in discriminatory practices. Plaintiff
27 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
28 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 16 -
1 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013).
2 91. The actions of Defendants as alleged herein were carried out with
3 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
4 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
5 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
6 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
7 conduct described herein was engaged in by officers, directors, and/or managing
8 agents for the Defendant or ratified by officers, directors, and/or managing agents.
9 92. Plaintiff has incurred and continues to incur attorneys' fees and legal
10 expenses in an amount according to proof at the time of trial.
11 NINTH CAUSE OF ACTION
12 (Wrongful Termination in Violation of Public Policy)
13 (Against all Defendants Except Defendant ROSIE AVUNDZHYAN)
14 93. Plaintiff restates and incorporates by reference each and every one of
15 the above allegations as though they were fully set forth herein.
16 94. Plaintiff’s employment was terminated as a result of Defendants’
17 violation of fundamental public policies. It is against fundamental California public
18 policy to discriminate and retaliate against an employee on the basis of actual or
19 perceived disability, or for requesting accommodations. It is also against fundamental
20 California public policy to fail to engage in the interactive process and to fail to
21 accommodate an employee with a disability. It is against fundamental California
22 public policy to discriminate and retaliate against an employee for engaging in
23 protected activity.
24 95. As a proximate result of the wrongful conduct of Defendants, and each
25 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
26 and other employment benefits in an amount according to proof at the time of trial.
27 ///
28 ///
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 17 -
1 96. As a proximate result of the wrongful conduct of Defendants, and each
2 of them, Plaintiff has suffered emotional distress, physical manifestations of
3 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
4 general damages, in an amount according to proof at the time of trial.
5 97. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court
6 to issue a judicial determination of the rights and duties of the parties. A judicial
7 declaration is necessary and appropriate such that Defendants may also be aware of
8 its obligations under the law to not engage in discriminatory practices. Plaintiff
9 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an
10 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v.
11 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013)
12 98. The actions of Defendants as alleged herein were carried out with
13 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full
14 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights
15 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of
16 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’
17 conduct described herein was engaged in by officers, directors, and/or managing
18 agents for the Defendant or ratified by officers, directors, and/or managing agents.
19 99. Plaintiff has incurred and continues to incur attorneys' fees and legal
20 expenses in an amount according to proof at the time of trial.
21 TENTH CAUSE OF ACTION
22 (Unlawful Retaliation in Violation of Labor Code 1102.5)
23 (Against All Defendants Except Defendant ROSIE AVUNDZHYAN)
24 100. Plaintiff restates and incorporates by reference each and every one of the
25 above allegations as though they were fully set forth herein.
26 101. California Labor Code section 1102.5 (a) states that an employer shall
27 not make, adopt, or enforce any rule, regulation, or policy preventing an employee
28 from disclosing information to a government or law enforcement agency, to a person
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 18 -
1 with authority over the employee, or to another employee who has authority to
2 investigate, discover, or correct the violation or noncompliance, if the employee has
3 reasonable cause to believe that the information discloses a violation of state or
4 federal statute, or a violation of or noncompliance with a local, state, or federal rule
5 or regulation, regardless of whether disclosing the information is part of the
6 employee's job duties.
7 102. California Labor Code section 1102.5 (b) states that an employer shall
8 not retaliate against an employee for disclosing information to a government or law
9 enforcement agency, to a person with authority over the employee, or to another
10 employee who has authority to investigate, discover, or correct the violation or
11 noncompliance, if the employee has reasonable cause to believe that the information
12 discloses a violation of state or federal statute, or a violation of or noncompliance with
13 a local, state, or federal rule or regulation, regardless of whether disclosing the
14 information is part of the employee's job duties.
15 103. Labor Code section 1102.5(c) prohibits an employer from retaliating
16 against an employee “for refusing to participate in an activity that would result in a
17 violation of state or federal statute, or a violation of or noncompliance with a local,
18 state, or federal rule or regulation.
19 104. Plaintiff engaged in protected conduct as described herein.
20 105. Defendants violated sections 1102.5(a), (b) and/or (c), at a minimum,
21 when it retaliated against Plaintiff through all of its actions as described herein.
22 106. Plaintiff is informed and believes and thereon alleges that the protected
23 conduct was a contributing factor in Defendants' retaliation against Plaintiff.
24 107. As a proximate result of the wrongful conduct of Defendants, and each
25 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings
26 and other employment benefits in an amount according to proof at the time of trial.
27 108. As a proximate result of the wrongful conduct of Defendants, and each
28 of them, Plaintiff has suffered emotional distress, physical manifestations of
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 19 -
1 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other
2 general damages, in an amount according to proof at the time of trial.
3 The actions of Defendants as alleged herein were carried out with malice, willfulness
4 and/or reckless indifference to the rights of Plaintiff, with full knowledge of their
5 unlawfulness, and with the intent to deprive Plaintiff of rights guaranteed under the
6 law. Plaintiff is entitled to punitive damages for the purpose of deterring such
7 unlawful, malicious, oppressive and/or reckless conduct. Plaintiff has suffered in
8 excess of eighty thousand dollars in damages and is entitled to punitive damages for
9 the purpose of deterring such unlawful, malicious, oppressive and/or reckless
10 conduct, or any combination thereof.
11 109. Defendants’ conduct described herein was engaged in by officers,
12 directors, and/or managing agents for the Defendant or ratified by officers, directors,
13 and/or managing agents.
14 110. Plaintiff has incurred and continues to incur attorneys' fees and legal
15 expenses in an amount according to proof at the time of trial.
16 ELEVENTH CAUSE OF ACTION
17 (Unlawful Discrimination and Retaliation in Violation of Labor Code 6310)
18 (Against All Defendants Except Defendant ROSIE AVUNDZHYAN)
19 111. Plaintiff restates and incorporates by reference each and every one of the
20 above allegations as though they were fully set forth herein.
21 112. California Labor Code § 6310 prohibits employers from discharging,
22 constructively discharging, retaliating, “or in any other manner” discriminating in the
23 terms and conditions of employment against any employee for making any oral or
24 written health or safety complaint, or complaint regarding working conditions to a
25 governmental agency or their employer. Section 6310 also prohibits an employer from
26 retaliating against employees whom they suspect will file a complaint related to
27 workplace safety.
28 113. Plaintiff engaged in protected conduct as described herein.
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 20 -
1 114. Defendants violated Labor Code § 6310 when it retaliated and/or
2 discriminated against Plaintiff through all of its actions as described herein.
3 115. As a proximate result of the wrongful conduct of Defendants, and each of
4 them, Plaintiff has suffered and continues to sustain substantial losses in earnings
5 and other employment benefits in an amount according to proof at the time of trial.
6 116. As a proximate result of the wrongful conduct of Defendants, and each of
7 them, Plaintiff has suffered emotional distress, physical manifestations of emotional
8 distress as defined by Internal Revenue Code Section 104(a)(2), and other general
9 damages, in an amount according to proof at the time of trial.
10 117. The actions of Defendants as alleged herein were carried out with malice,
11 willfulness and/or reckless indifference to the rights of Plaintiff, with full knowledge
12 of their unlawfulness, and with the intent to deprive Plaintiff of rights guaranteed
13 under the law. Plaintiff is entitled to punitive damages for the purpose of deterring
14 such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ conduct
15 described herein was engaged in by officers, directors, and/or managing agents for the
16 Defendant or ratified by officers, directors, and/or managing agents.
17 118. Plaintiff has incurred and continues to incur attorneys' fees and legal
18 expenses in an amount according to proof at the time of trial.
19 TWELFTH CAUSE OF ACTION
20 (Unlawful Retaliation in Violation of Labor Code 6311)
21 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN)
22 119. Plaintiff restates and incorporates by reference each and every one of the
23 above allegations as though they were fully set forth herein.
24 120. California Labor Code § 6311 states that no employee shall be laid off or
25 discharged for refusing to perform work in the performance of which this code,
26 including Section 6400, any occupational safety or health standard or any safety order
27 of the division or standards board will be violated, where the violation would create a
28 real and apparent hazard to the employee or his or her fellow employees. Any employee
COMPLAINT Toothman v. Ralphs Grocery Company., et al.
- 21 -
1 who is laid off or discharged in violation of this section or is otherwise not paid because
2 he or she refused to perform
Related Content
in Los Angeles County
Ruling
MITAL TAMORO VS QUANTUM CORPORATION
Jul 26, 2024 |
23STCV03260
Case Number:
23STCV03260
Hearing Date:
July 26, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department
50
MITAL TAMORO
,
Plaintiff,
vs.
QUANTUM CORPORATION
,
et al
.
,
Defendants.
Case No.:
23STCV03260
Hearing Date:
July 26, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION
AND RELATED CROSS-ACTION
Background
Plaintiff Mital Tamoro (Plaintiff) filed this action on February 14, 2023 against Defendant Quantum Corporation (Quantum). The Complaint alleges causes of action for
(1) pregnancy discrimination, (2) disability discrimination, (3) failure to accommodate,
(4) failure to engage in the interactive process, (5) denial of CFRA rights, (6) failure to reimburse expenses, and (7) interference with prospective economic advantage.
On May 7, 2024, Quantum filed a Cross-Complaint against
Larkin Benefit Administrators, d/b/a The Larkin Company (Larkin), alleging causes of action for (1) breach of contract failure to perform, (2) breach of contract failure to defend and indemnify,
(3) negligence, (4) comparative indemnity, (5) equitable indemnity, and (6) declaratory relief.
Plaintiff now moves for summary adjudication in her favor on the fourth and fifth causes of action of Plaintiffs Complaint. Quantum opposes.
Request for Judicial Notice
The Court grants Quantums request for judicial notice.
Evidentiary Objections
The Court rules on Quantums evidentiary objections as follows:
Objection No. 1: overruled
Objection No. 2: overruled
Objection No 3: overruled
Objection No. 4: overruled. The Court notes that it is unable to locate the cited language in the Declaration of Larry Herrera.
Objection No. 5: sustained
Objection No. 6: sustained
Objection No. 7: sustained
Objection No. 8: overruled
Objection No. 9: overruled
Objection No. 10: overruled. The Court notes that the cited excerpts in Objection No. 10 are contained in Exhibit 2 to the Compendium of Evidence filed by Plaintiff.
Objection No. 11: overruled. The Court notes that the cited excerpts in Objection No. 11 are contained in Exhibit 2 to the Compendium of Evidence filed by Plaintiff.
Objection No. 12: overruled
Objection No. 13: overruled
Objection No. 14: sustained as to required an extension of my disability leave of absence, overruled as to the remainder.
Objection No. 15: overruled
Objection No. 16: overruled
Objection No. 17: overruled
Legal Standard
A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in
Section 3294 of the Civil Code
, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.
((
Code Civ. Proc., § 437c, subd. (f)(1)
.)
For purposes of motions for summary judgment and summary adjudication&
A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.
((
Id.,
§ 437c, subd. (p)(1)
.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (
¿
Aguilar
v. Atlantic Richfield Co
. (2001) 25 Cal.4th 826, 850
¿
.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (
¿
Ibid
.
¿
) Courts
¿
liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.
¿
(
¿
Dore
v. Arnold Worldwide, Inc
. (2006) 39 Cal.4th 384, 389
¿
.)
Discussion
A.
Allegations of the Complaint
In the Complaint, Plaintiff alleges that o
n or around March 15, 2021, she began her employment with Quantum as the Director of Global Field and Channel Marketing. (Compl., ¶ 8.) During TAMOROs employment with QUANTUM, she experienced issues with Brett Zumwalt (Field Marketing Manager). (Compl., ¶ 11.) On or around May 11, 2021, TAMORO organized a meeting with [Leslie Olivetta (Human Resources)] to complain about Zumwalts difficult behavior and hostility, which was creating an intolerable working condition and added to TAMOROs stress. (Compl., ¶¶ 13-14.)
QUANTUM hired an external law firm to investigate the ongoing issues between TAMORO and Zumwalt. (Compl., ¶ 17.) The investigation concluded, and Zumwalt along with another colleague, Kimberly, took a leave of absence. This left TAMORO to pick up their workload and handle her own work concurrently&While both Kimberly and Brett were on leave, they resigned. This created a heavy workload for TAMORO. (Compl., ¶ 18.) As a result, TAMOROs stress and anxiety was exacerbated. During this time, QUANTUM did not reach out to TAMORO to help alleviate the workload. (Compl., ¶ 19.) TAMORO complained about the work-related stress to Human Resources, but nothing came from it. (Compl., ¶ 21.)
In or around April of 2021, TAMORO learned that she was pregnant and informed her supervisor, Natasha Beckly. (Compl., ¶ 12.) On or around October 1[,] 2021, TAMORO informed her supervisor Natasha Beckly via phone and Karen Edie that her doctor placed her on medical leave due to the work environment affecting her health. (Compl., ¶ 22.) TAMOROs leave of absence (hereinafter LOA) began on October 11, 2021 and would transition into her maternity leave starting October 30, 2021. (Compl., ¶ 23.) On or around October 6, 2021, TAMORO received a letter from Larkin, the company in charge of her LOA, stating that her pregnancy disability leave (hereinafter PDL) was approved from November 1, 2021, through January 10, 2022. (Compl., ¶ 24.)
On or around December 6, 2021, TAMORO emailed Laura Rebollo at the Larkin company to inform her that her doctor extended her PDL for another week because she was not recovering as originally anticipated. TAMORO was expected to return to work January 10, 2022, but with this new extension her new return date was January 17, 2022. (Compl., ¶ 25.) On or around December
8, 2021, Lark
in sent TAMORO a letter informing her that her PDL extension was approved. (Compl., ¶ 26.)
On or around December 29, 2021, TAMORO was informed by Larkin that her parental leave was approved. TAMOROs parental leave would begin on January 17, 2022 and continue through April 10, 2022. TAMORO was expected to return to work on April 11, 2022. (Compl., ¶ 27.) On or around January 5, 2022, TAMORO emailed Laura Rebollo to inform her that her doctor had extended her PDL because she was receiving treatment for her Postpartum Depression. (Compl., ¶ 28.)
On or around February 2, 2022, TAMORO emailed Rebollo with an updated work status report from her physician. Her physician extended her disability leave to February 14, 2022. (Compl., ¶ 29.) On or around February
3, 2022, Lark
in sent TAMORO a letter approving her extended leave through February 13, 2022, immediately followed by 12 weeks of parental leave. (Compl., ¶ 30.) On or around March 4, 2022, TAMORO emailed Rebollo with an updated work status report that her physician extended her leave until March 14, 2022, because of her ongoing disability. TAMORO received a letter stating that her extension was approved, and her leave was extended until March 7, 2022. (Compl., ¶ 31.)
On or around March 9, 2022, TAMORO emailed Rebollo, to inform her that her physician extended her leave once again because of her ongoing disability. TAMORO was diagnosed with generalized anxiety disorder and major depressive order&Once again, her extension was approved through March 27, 2022, immediately followed by 8 weeks of parental leave. (Compl., ¶ 32.)
Plaintiff alleges that [o]n or around March 16, 2022, QUANTUM discriminated and retaliated against TAMORO by terminating her. (Compl., ¶ 33.) During a phone call with Dana Rosebrook and Karen Edie, they informed TAMORO that she was terminated. QUANTUM terminated TAMOROs employment while she was still on her approved disability leave. QUANTUM stated that it was terminating Tamoro because it needed to fill the headcount. (Compl., ¶ 34.) Plaintiff alleges that TAMOROs sudden termination was two weeks before her first installment of her Restricted Stock Option&was due to vest. (Compl., ¶ 39.)
B.
Fifth Cause of Action for Denial of CFRA Rights
In the Complaint, Plaintiff alleges that [a]t the time QUANTUM terminated TAMORO, TAMORO had been employed
with QUANTUM for over one year and had worked over 1,250 hours in the previous year, and was therefore entitled to CFRA leave. (Compl., ¶ 35.)
In the fifth cause of action for denial of CFRA rights, Plaintiff alleges that
PLAINTIFF was a new mother with a new born child, employed by QUANTUM and protected by
Government Code § 12945
, which affords employees who recently gave birth to a child, protected leave to care for their newborn child. (Compl., ¶ 96.) Plaintiff alleges that [u]nder the California Family Rights Act, TAMORO was entitled to take a pregnancy leave up to a maximum of four months, and that QUANTUM terminated TAMOROs employment on March 16, 2022, one day into her CFRA protected leave. (Compl., ¶¶ 97-98.) Plaintiff alleges that QUANTUM denied TAMORO of her CFRA rights by terminating her just one day into her CFRA protected leave, in violation of
Government Code §12945
. (Compl., ¶ 99.)
Violations of the CFRA generally fall into two types of claims: (1) interference claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave&and (2) retaliation claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave. ((
Rogers v. County of Los Angeles
(2011) 198 Cal.App.4th 480, 487-488
.)
As noted by Quantum, Plaintiff does not appear to identify
which type of CFRA violation she is claiming. It appears Plaintiff may be asserting an interference claim because Plaintiffs fifth cause of action is for denial of CFRA rights. Plaintiff does not argue in the instant motion that Quantum retaliated against her for
exercising her right to CFRA leave
.
Pursuant to
Government Code section
12945.2, subdivision (a)
,
[i]t shall be an unlawful employment practice for any employer, as defined in paragraph (4) of subdivision (b), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period or who meets the requirements of subdivision (r), to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave.
Pursuant to
Government Code section
12945.2, subdivision (b)(4)
,
employer includes
[a]ny person who directly employs five or more persons to perform services for a wage or salary.
In the motion, Plaintiff asserts that Defendant violated Tamoros CFRA rights when it terminated her while on CFRA protected leave. (Mot. at p. 7:17-18.) In her declaration, Plaintiff states that [a]t the time of my termination, I was aware of substantially more than five people currently employed by Defendant. (Tamoro Decl., ¶ 22.) In addition, Plaintiff states that I applied for baby bonding time, and on December 29, 2021, The Larkin Company sent me a letter informing me that I had been approved for parental leave to care for my newborn child through April 10, 2022. Attached as Exhibit 2 to this declaration is a true and correct copy of the letter I received from The Larkin Company that was dated December 29, 2021. (Tamoro Decl., ¶ 12.) This December 29, 2021 letter provides,
inter alia
, that [y]ou requested twelve weeks of parental leave to care for your newborn immediately following your recovery from pregnancy disability. This leave will begin on January 17, 2021 and continue through April 10, 2022 and will be counted against Quantums leave policy, and as of March 15, 2022, against your Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) entitlements. (Tamoro Decl., ¶ 12, Ex. 2.)
In the motion, Plaintiff argues that since March 15, 2022, she had been employed with Defendant for at least 12 months and in the preceding 12 months, she had worked at least 1250 hours. (Mot. at p. 7:1-2.) In her supporting declaration, Plaintiff states that she began working for Quantum Corporation on March 15, 2021. (Tamoro Decl., ¶ 2.) Plaintiff states that [o]n March 16, [she] received a call from Human Resources Manager Dana Rosebrook as well as Karen Edie, who informed [Plaintiff] that Quantum was terminating [her] employment. (Tamoro Decl., ¶ 18.)
In support of the assertion that she worked at least 1,250 hours
during the subject 12-month period, Plaintiff appears to rely on her counsels declaration. Plaintiffs counsel asserts,
inter alia
, that
Tamoro worked 1508 hours from March 15, 2021 to October 1, 2021. (Herrera Decl., ¶ 9.) However, as set forth above, the Court sustains Quantums evidentiary objection to this statement. (
See
Quantums Evid. Objection No. 7.) The Court agrees with Quantum that Mr. Herreras declaration does not contain a sufficient factual basis or reasoned explanation for his opinion/conclusion& (Quantums Objections at p. 7:11-13.) The Court does not find that Mr. Herrera has
laid an adequate
foundation
as to the statements made in paragraphs 7-9 of his declaration.
Based on the foregoing, the Court does not find that Plaintiff has met her burden of
proving each element of her fifth cause of action for denial of CFRA rights. Moreover, even if Plaintiff had demonstrated that she
has at least 1,250 hours of service with the employer during the previous 12-month period,
(
Gov. Code, § 12945.2, subd. (a)
),
the Court finds that Quantum has raised a triable issue of material fact as to this issue. As noted by Quantum, Plaintiff attaches as Exhibit 5 to her declaration a
copy of the letter [Plaintiff] received from The Larkin Company that was dated March 10, 2022. (Tamoro Decl., ¶ 17.) As Quantum notes, the March 10, 2022 letter provides,
inter alia
, that [y]ou requested eight weeks of parental leave to care for your newborn immediately following your recovery from pregnancy disability. At this time, you are not eligible for leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) because you have not worked at least 1,250 hours during the past year. (Tamoro Decl., ¶ 17, Ex. 5.)
Based on the foregoing, the Court denies Plaintiffs motion for summary adjudication as to the fifth cause of action for denial of CFRA rights.
///
///
C.
Failure to Engage in the Interactive Process
Pursuant to
Government Code section 12940, subdivision (n)
,
[i]t is an unlawful employment practice&
[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
In the fourth cause of action for failure to engage in the interactive process, Plaintiff alleges that
QUANTUM knew that TAMORO suffered from work-related stress and anxiety but failed to engage in the interactive process to see if she needed an accommodation, and that QUANTUM also knew that TAMORO suffered from complications following the birth of her newborn and once again failed to engage in the interactive process to try to accommodate her. (Compl., ¶¶ 86-87.)
In the instant motion, Plaintiff first asserts that she notified Defendant that she had a physical condition that required the accommodation of a temporary leave of absence so she could return to work and perform the essential functions of her job. (Mot. at p. 8:23-25.) It is unclear what evidence Plaintiff is relying on in support of this assertion, and what physical condition Plaintiff is referring to. Plaintiffs separate statement in support of the motion does not appear to contain any facts concerning Plaintiff notif[ying] Defendant that she had a physical condition that required the accommodation of a temporary leave of absence& (Mot. at p. 8:23-25.)
Plaintiff also asserts that despite it not being her duty to initiate the interactive process, she attempted to do so during her termination call by stating that she was willing to return to work early from her leave of absence. Defendant refused to engage in this discuss [sic] and summarily stated that the decision to terminate her had already been made. (Mot. at pp. 8:26-9:2.) In her supporting declaration, Plaintiff states that [o]n March 16, I received a call from Human Resources Manager Dana Rosebrook as well as Karen Edie, who informed me that Quantum was terminating my employment&During the call with Rosebrook and Edie, I said that I would forego my baby bonding time and return to work as soon as my doctor released me on March 28 if Quantum would let me keep my job, but Rosebrook and Edie said no. (Tamoro Decl., ¶¶ 18-19.)
In the opposition, Quantum asserts that Plaintiff cannot shoehorn a request to not be terminated into a request for a reasonable accommodation due to a disability&Plaintiff fails to cite to a single legal authority to support this unfounded theory. (Oppn at p. 19:13-15, emphasis omitted.) Indeed, Plaintiff does not appear to cite any legal authority demonstrating that a request to keep her job constitutes a request for a
reasonable accommodation. Quantum cites to
King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 443
, where the Court of Appeal noted that
[t]he interactive process of fashioning an appropriate accommodation lies primarily with the employee&It is an employees responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee
.
(Internal quotations and citations omitted.)
Based on the foregoing, the Court does not find that Plaintiff has met her burden of
proving each element of her fourth cause of action for failure to engage in the interactive process. Thus,
the Court denies Plaintiffs motion for summary adjudication as to the fourth cause of action.
Conclusion
Based on the foregoing,
Plaintiffs
motion for summary adjudication is denied in its entirety.
Quantum is ordered to provide notice of this ruling.
DATED:
July 26, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Ruling
JORGE L. VASQUEZ HERNANDEZ, INDIVIDUALLY, ET AL. VS CALIBER AEROSPACE, LLC, A TEXAS LIMITED LIABILITY COMPANY, ET AL.
Jul 26, 2024 |
23STCV20323
Case Number:
23STCV20323
Hearing Date:
July 26, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
JORGE L. VASQUEZ HERNANDEZ,
individually, and on behalf of all others
similarly situated
,
Plaintiff,
vs.
CALIBER AEROSPACE, LLC, a Texas
Limited Liability Company; EMPLOYER
SOLUTIONS STAFFING GROUP II, LLC, a
Minnesota Limited Liability Company; and
DOES 1 through 10, inclusive
,
Defendants.
CASE NO.:
23STCV20323
[TENTATIVE] ORDER RE:
MOTION FOR PRELIMINARY APPROVAL OF CLASS AND PAGA REPRESENTATIVE ACTION SETTLEMENT
Date: July 26, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: JORGE L. VASQUEZ HERNANDEZ, individually, and on behalf of all others similarly situated (Plaintiff)
RESPONDING PARTY: None
The Court has considered the moving papers.
The motion is unopposed.
BACKGROUND
On August 24, 2023, Plaintiff brought this action against Defendants CALIBER AEROSPACE, LLC and EMPLOYER SOLUTIONS STAFFING GROUP II, LLC (collectively, Defendants) for civil penalties under the Private Attorneys General Act of 2004, California Labor Code §§ 2698 et seq. (PAGA) stemming from Defendants alleged violations of the Labor Code.
Upon joint stipulation seeking leave of court to file Plaintiffs First Amended Complaint (FAC), which was granted, Plaintiff filed the operative FAC asserting the following causes of action: 1) Violation of Labor Code §§ 204, 246, 510, 1194, 1198 (Failure to Pay All Wages); 2) Violation of Labor Code §§ 226.7, 512 (Failure to Provide Meal Periods); 3) Violation of Labor Code § 226.7 (Failure to Provide Rest Periods); 4) Violation of Labor Code § 226, (Failure to Keep Accurate Itemized Wage Statements); 5) Violation of Labor Code §§ 201-203 (Failure to Pay Wages Upon Termination of Employment); 6) Violation of Labor Code § 2802 (Failure to Reimburse for Necessary Expenditures); 7) Violation of Bus. & Prof. Code § 17200,
et seq.
(Unfair Business Practices); and 8) Violation of the Private Attorneys General Act, Labor Code sections 2698,
et seq.
On May 1, 2024, Plaintiff filed the instant motion for preliminary approval of class and PAGA representative action settlement (the Motion).
No opposition or reply has been filed.
DISCUSSION
Legal Standard
Approval of class action settlements occurs in two steps.
First, the court preliminarily approves the settlement and the class members are notified as directed by the court.
(Cal. Rules of Court, rule 3.769(c), (f);
Cellphone Termination Fee Cases
(2009) 180 Cal.App.4th 1110, 1118.)
Second, the court conducts a final approval hearing to inquire into the fairness of the proposed settlement.
(Cal. Rules of Court, rule 3.769(e);
Cellphone Termination Fee Cases, supra
, 180 Cal.App.4th at 1118.)
Any party to a settlement agreement may serve and file a written notice of motion for preliminary approval of the settlement.
(Cal. Rules of Court, rule 3.769(c).)
The settlement agreement and proposed notice to class members must be filed with the motion, and the proposed order must be lodged with the motion.
(
Id.
)
The trial court has broad discretion to determine whether the settlement is fair.
(
Cellphone Termination Fee Cases, supra
, 180 Cal.App.4th at 1117 [quoting
Dunk v. Ford Motor Co.
(1996) 48 Cal.App.4th 1794, 1801].)
In determining whether to approve a class settlement, the courts responsibility is to prevent fraud, collusion or unfairness to the class through settlement and dismissal of the class action because the rights of the class members, and even named plaintiffs, may not have been given due regard by the negotiating parties.
(
Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America
(2006) 141 Cal.App.4th 46, 60.)
ANALYSIS
A.
Class Certification is Appropriate.
A class action is proper when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.
(Code Civ. Proc., § 382.)
The party seeking certification bears the burden of establishing the existence of an ascertainable class and a well-defined community of interest among class members.
(
Dunk v. Ford Motor Co.
(1996) 48 Cal.App.4th 1794, 1806.)
The proposed class consists of approximately 82 class members, all of whom may be identified by reference to Defendants records that pertain to non-exempt status and dates of employment.
(Motion, p. 9; Class Action and PAGA Settlement Agreement (Settlement), ¶ 4.1.)
Class members share a common interest in determining whether Defendants violated wage and hour requirements under state and related federal law, including the following issues: i. Whether or not Defendants paid proper wages to the Class; ii. Whether or not Defendants provided meal periods to the Class; iii. Whether or not Defendants provided rest periods to the Class; iv. Whether or not Defendants paid compensation timely upon separation of employment to former Class Members; v. Whether or not Defendants paid compensation timely throughout Class Members employment; vi. Whether or not Defendants provided accurate itemized wage statements to the Class; vii. Whether or not waiting-time penalties are available to the Class for violation of California Labor Code § 203; viii. Whether or not Defendants reimbursed for necessary business expenses pursuant to California Labor Code § 2802; ix. Whether or not Defendants engaged in unlawful or unfair business practices affecting the Class in violation of California Business and Professions Code §§ 17200-17208; and x. Whether or not Plaintiff and the Class are entitled to penalties pursuant to PAGA.
(Declaration of Lilit Tunyan in Support of Plaintiffs Motion (Tunyan Decl.), ¶ 37.)
Thus, based on the commonality of issues and numerosity of class members, class resolution is a superior method of adjudication.
Plaintiffs claims, as alleged in the FAC, are typical of the class and arise from the same common questions, and Plaintiff is an adequate representative whose interests align with the class.
Like other class members, Plaintiff was employed by Defendants in a non-exempt position during the proposed class period, and Plaintiff claims that he was subject to the same policies alleged to have impacted the entire class.
(Tunyan Decl., ¶ 36.)
Plaintiff alleges that he and other class members share the same claims stemming from Defendants alleged violations of the Labor Code.
Additionally, the proposed class counsel is qualified to represent the class. Plaintiffs counsel is experienced in wage and hour class action litigation and has no conflicts of interest with absent class members. (Tunyan Decl., ¶¶ 20-26, 39.)
Accordingly, class certification is appropriate.
B.
The PAGA Penalties Are Appropriate.
A court must review and approve any PAGA penalties sought as part of a proposed settlement agreement.
(Lab. Code § 2699, subd. (l).)
[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws and education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees.
(Lab. Code, § 2699, subd. (i).)
The PAGA penalties here comply with this requirement.
(Settlement, p. 9, ¶ 3.2.5.) Accordingly, the PAGA penalties are appropriate, subject to a finding that the settlement is fair.
Additionally, a proposed PAGA settlement must be submitted to the Labor and Workforce Development Agency (LWDA) at the same time that it is submitted to the court for review and approval.
(Lab. Code § 2699, subd. (l)(2).)
Here, counsel for Plaintiff provided a copy of the notice of the PAGA settlement to the LWDA through the online submission portal.
(Tunyan Decl., ¶¶ 42-43; Exh. 2.)
Thus, Plaintiff demonstrated compliance with Labor Code section 2699(l)(2).
C.
The Terms of Settlement Are Fair.
Settlement of a class action requires court approval to prevent fraud, collusion, or unfairness to the class.
(
Dunk, supra,
48 Cal.App.4th at 1800-1801.)
In making the fairness determination, a presumption of fairness exists where (1) the settlement is reached through arms-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.
(
Id.
at p. 1802.)
The proposed settlement was reached through a mediation session with Michael Young, Esq., a highly experienced and well-regarded mediator for wage and hour class action litigation, during which the Parties discussed at length the burdens and risks of continuing with the litigation as well as the merits of the claims and defenses. (Tunyan Decl., ¶ 7.)
In connection with the mediation, the parties engaged in substantial discovery and investigation, including, inter alia, the exchange of informal data and discoverable information in preparation for the settlement negotiations.
The Parties have analyzed payroll and other data pertaining to Plaintiff and the Class during the relevant Settlement Period, including but not limited to the numbers of former and current members of the Class, average workweeks, sample size time and pay records and average rate of hourly pay, wage and hour policies. (
Id.
¶ 5.)
The settlement was therefore reached through arms-length bargaining with sufficient investigation to allow counsel and the Court to act intelligently.
Defendants will pay a gross settlement amount of $110,000.00, which is about 74% of the $148,367.80 estimate of risk-adjusted recovery (excluding interest) at this stage in the litigation.
(Tunyan Decl., ¶¶ 10(c), 17; Settlement, ¶ 3.1.)
Of this amount, no more than $10,000.00 will be paid to Plaintiff as a class representative service payment, no more than $36,666.67 will be paid as attorney fees, no more than $16,000.00 will be paid as class counsel litigation expenses payment, no more than $10,000.00 will be paid for settlement administration, and $15,000.00 will be paid as PAGA penalties.
(Settlement, pp. 7-9, ¶ 3.)
Of the PAGA payment, $11,250.00 (75%) will be paid to the LWDA and $3,750.00 (25%) will be allocated to the individual PAGA payments. Class members individual payments will be based on their number of workweeks during the class period.
(Settlement, p. 8, ¶ 3.2.4.)
Incentive payments are based on the expense and risk undertaken by named plaintiffs for the benefit of other class members.
(
Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles
(2010) 186 Cal.App.4th 399, 412.)
Based on Plaintiffs involvement in this action (Tunyan Decl. ¶ 32), a $10,000.00 payment to Plaintiff is reasonable.
The requested $36,666.67 in attorney fees is reasonable and consistent with fee awards in class actions.
(
Chavez v. Netflix, Inc.
(2008) 162 Cal.App.4th 43, 66, fn. 11 [Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery, internal quotation marks omitted].)
Additionally, the requested $16,000.00 in costs is reasonable.
The parties agreed to recommend Phoenix Class Action Administration Solutions (Phoenix) as the settlement administrator.
(Tunyan Decl., ¶ 33.)
Based on the Courts experience, the $10,000.00 requested fee is reasonable.
As discussed above, Plaintiffs counsel has extensive experience in labor and employment law, including class and representative actions.
(Tunyan Decl., ¶¶ 20-26.)
There are no objectors to the settlement at this time, so at the preliminary approval stage, the proposed settlement is entitled to a presumption of fairness.
D.
The Notice Procedure Is Appropriate.
The Notice to Class Members (Notice) will issue within 14 days of receipt of the Class List (Settlement, ¶ 7.4.2).
The Notice describes how to dispute workweeks, submit an objection in writing, in person, or through an attorney, or request exclusion (Settlement, ¶¶ 7.4 7.7)
The content of the Notice contains a brief explanation of the case, a statement regarding exclusion from the class, a procedure for exclusion, a statement that judgment will bind all non-excluded members, and a statement that any member who does not request exclusion may appear through counsel, in compliance with California Rules of Court, rule 3.766(d).
If a class member wants to be excluded, one can exclude himself or herself from the Settlement by submitting a written request for exclusion or otherwise notifying the Administrator in writing.
Class members do not need to take any action to submit a claim if they do wish to remain in the class.
(Exh. A to Settlement, Notice.)
Accordingly, the proposed notice procedure is appropriate.
RULING
Based on all the foregoing, Plaintiffs Motion is GRANTED.
The Court sets the following dates related to the settlement:
Defendants must provide the Class Data to the Administrator within 14 days of the preliminary approval.
The Administrator must serve notices to Class Members within 14 days of receiving the Class List.
Members of the Settlement Class shall have 45 calendar days from the mailing of the Class Notice to object or opt out.
The Final Approval Hearing is set for November 5, 2024 at 8:30 a.m.
Class Counsel shall file the Motion for Final Approval of Settlement at least 16 court days prior to hearing.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 26th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
MARIA RIVERO VS COUNTY OF LOS ANGELES, ET AL.
Jul 29, 2024 |
23STCV07694
Case Number:
23STCV07694
Hearing Date:
July 29, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
MARIA RIVERO
,
Plaintiff,
v.
COUNTY OF LOS ANGELES; NANCY CANOSA; and DOES 1 to 10
,
Defendants.
Case No.:
23STCV07694
Hearing Date: July 29, 2024
Trial Date: N/A
[TENTATIVE] RULING RE:
MOTION TO COMPEL DEFENDANT LOS ANGELES COUNTYS FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS TO PLAINTIFFS FIRST SET OF PRODUCTION OF DOCUMENTS AND FOR MONETARY SANCTIONS OF $1650
.
Background Allegations
This wrongful termination claim involves the plaintiff's employment with Child Support Services for Los Angeles County. Plaintiff alleges that her supervisor failed to address workplace safety concerns and made inappropriate comments about her age and ethnicity.
Plaintiff Maria Rivero (Plaintiff) sues Defendants County of Los Angeles (LA County), Nancy Canosa (Canosa), and Does 1 to 10 (collectively Defendants) pursuant to an October 30, 2023, First Amended Complaint (FAC) alleging claims of (1) Medical Leave Retaliation, Govt. Code § 12945.2 (CFRA), (2) Paid Sick Leave Retaliation, Labor Code § 245 et. seq. including 246.5, (3) Paid Sick Leave Discrimination, Labor Code § 245 et seq. including 246.5, (4) Medical Leave Discrimination, Govt. Code § 12945.2 (CFRA), (5) Retaliation for Requesting Accommodations for Disabilities, Govt. Code § 12940(m), (6) Failure to Engage in a Timely and Good Faith, Interactive Process to Determine Reasonable Accommodation for Disability, Govt. Code § 12940(n), (7) Failure to Reasonably Accommodate Disabilities, Govt. Code § 12940(m), (8) Disability Discrimination, Govt. Code § 12940(a), (9) Discrimination Based on Ancestry Disparate Treatment, Govt. Code § 12940, (10) Discrimination Based on Age Disparate Treatment, Govt. Code § 12940, (11) Harassment Based on Ancestry, Govt. Code § 12940, (12) Harassment Based on Age, Govt. Code § 12940, (13) Retaliation for Opposing Violations of FEHA (Govt. Code § 12900, et seq.), Govt. Code § 12940(h), (14) Failure to Prevent and Stop Harassment, Discrimination, and Retaliation, Govt. Code § 12940(j), (k), and (15) Whistleblower Retaliation, Labor Code §§ 1102.5 & 1102.6.
On April 07, 2023, Plaintiff Maria Rivero filed a Complaint against Defendants County of Los Angeles (LA County), Nancy Canosa (Canosa), and Does 1 to 10 (collectively Defendants).
On June 12, 2023, Defendants demurred to the Complaints sixteen causes of action based on the sufficiency of the pleading.
That same day, Defendants moved to strike portions of the Complaint related to punitive damages.
On October 9, 2023, the Court sustained Defendants Demurrer to the Complaint in part, mooted the motion to strike, and granted Plaintiff twenty (20) days leave to amend her Complaint.
On October 30, 2023, Plaintiff filed the operative complaint against the Defendants, alleging fifteen (15) causes of action.
Defendants collectively filed their Answer to the FAC on January 02, 2024.
Plaintiff filed two motions to compel further responses and production of documents (CRS #4768, filed 3/26/24) and a motion to compel further responses to special interrogatories (CRS #3793, filed 3/28/24 [in addition to a prior motion to compel special interrogatories, CRS #7838, filed 2/21/24].) Both motions requested monetary sanctions of $1650. On June 17, 2024, Plaintiff filed a notice of withdrawal of motion to compel further responses to Defendants supplemental responses to special interrogatories nos. 2-5 relevant to CRS#3793, but stated that Plaintiff was not withdrawing her separate motion to compel further responses to Defendants initial responses to Plaintiffs first set of special interrogatories, nos. 6-8 (of which only No. 7 actually remains in issue.) A subsequent notice of withdrawal filed on July 8, 2024 indicated that the previously filed motion to compel further special interrogatory responses (CRS#7838) was now being withdrawn. As stated therein, the only motion that continued to be pending was the motion to compel further responses to requests for production of documents.
Defendants opposed the remaining motion on July 16, 2024. No reply has been filed as of July 25.
Motion to Compel Further Production
Timeliness
A motion to compel further discovery responses must be filed and served within 45 days after the initial verified response or supplemental verified response was personally served or by any specific later date that the discovering party agreed to in writing. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c) [
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
,
supra
, at p. 403].) Extra time is added to the 45 days if the response was served by a method other than personal delivery. (See Code Civ. Proc., §§ 1010.6, subd. (a)(3)(B), 1013, subds. (c), (e), 2016.050.)
Here, the motion is timely.
Meet and Confer
A motion to compel further production must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(1).) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)
Here, the parties met and conferred and conducted an IDC.
Separate Statement
A motion to compel further responses to interrogatories, demands to produce, or RFAs must be accompanied by a separate statement unless (1) no response has been provided to the discovery request or (2) the court has allowed the moving party to submit a concise outline of the discovery request and each response in dispute in place of the separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(1); see Code Civ. Proc., §§ 2030.300, subd. (b)(2), 2031.310, subd. (b)(3), 2033.290, subd. (b)(2).)
Here, such a separate statement was filed.
Legal Standard
A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., § 2031.310, subd. (a);
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 403.)
To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1);
Sinaiko
,
supra
, at p. 403); and (2) that a further response is needed because (a) the responding partys statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding partys representation that it is unable to comply is inadequate, incomplete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding partys objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3);
Catalina Island Yacht Club v. Superior Court
(2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).
Order Compelling Further Production
:
Plaintiff seeks further production of the following:
·
Requests 7-10, seeking documents reflecting that any other employee complained that plaintiff was treated unfairly based on her protected classes of age, ancestry, disability or medical leave.
·
Requests 11 and 2, seeking any investigation documents into complaints that plaintiff was treated unfairly on the above grounds.
·
Request 13, seeking documents relating to any complaint by any other employee that certain individuals Nancy Canosa or Geanie Chough had engaged in discrimination or harassment on the same protected grounds.
Defendant County of Los Angeles opposes the requests, arguing that certain terms in the requests are vague, such as any assertion, concern or complaint, unfair criticism, insensitive or offensive language. The County argues there is no limitation as to time and Plaintiff only began working for Ms. Canosa in 2017. The County also argues that the requested information is privileged and protective by the deliberative process doctrine, the official information privilege, settlement privilege and mediation privileges, and that the requested information would violate the privacy rights of third parties. Finally, the County argues that Plaintiffs citations to cases involving the admissibility of me too evidence at trial is not applicable to whether a plaintiff can seek discovery of such evidence.
The Court GRANTS the motion, in part, as modified.
First, however, the Court agrees with the Defendant that the requests should be limited in time. Documents from the beginning of Plaintiffs employment are remote and do not relate to the decisionmakers alleged to have engaged in discriminatory conduct here. It appears in the motion that Plaintiff is limiting the requests to the past four years. (Mot., p. 10:26-27.) Accordingly, the Court will limit the timeframe to January 1, 2020 to the present.
Second, if the County has documents that it contends are covered by the attorney/client, work product, settlement or mediation privileges, there is an easy and well established fix written into the statute: it must provide a privilege log so that Plaintiff can ascertain whether there is a basis to challenge the assertions. (Code Civ. Proc. § 2031.240, subd. (c).)
The remaining objections, however, are not well taken.
First, the Court sees no terms that are excessively vague that they cannot be responded to.
Second, so-called me too evidence of complaints by other employees has been held to be relevant and admissible in discrimination and harassment cases. (
Meeks v. Autozone, Inc.
(2018) 24 Cal.App.5th 855, 871;
Pantoja v. Anton
(2011) 198 Cal.App.4th 87, 129;
Johnson v. United
Cerebral Palsy/Spastic Childrens Foundation
(2009) 173 Cal.App.4th 740, 767.) If evidence is potentially relevant and admissible at trial, then it is by definition discoverable, as the scope of discovery in California is broad. [A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Cal. Code Civ. Proc. § 2017.010; see also
Pacific Tel. & Tel. Co. v. Superior Court
(1970) 2 Cal.3d 161 [An appellate court cannot reverse a trial courts grant of discovery under a relevancy attack unless it concludes that the answer sought by a given line of questioning cannot as a reasonable possibility lead to the discovery of admissible evidence or be helpful for preparation for trial.].)
Third, the privacy rights of the potential third parties who complained that either Plaintiff had been discriminated against or that they had, are outweighed by the relevance of such information to this action, as well as the fact that the information can be protected by a routine protective order limiting the use of the information to this lawsuit. (
Puerto v. Superior Court
(2008) 158 Cal.App.4th 1242, 1259.) The parties have already entered into, and the Court has signed, a stipulated protective order, as of March 18, 2024. This same order will apply to all the additional discovery provided regarding third parties in this order.
Finally, as to the deliberative process doctrine and the official information privilege, the County includes a single page in the opposition (at pp. 5-6) regarding this argument, citing a single case,
N.L.R.B. v. Sears, Roebuck
(1974) 421 U.S. 132. Without pin cite, the Court concludes that the County means to reference what has been called the deliberative process privilege, which is called in that decision the executive privilege, in the context of the Freedom of Information Act (FOIA). The case further discusses the fact that the same privilege often overlaps with the attorney work product privilege: It is equally clear that Congress had the attorneys work-product privilege specifically in mind when it adopted Exemption 5. (
Id.
at p. 154.) An additional Exemption 7 to the FOIA was discussed dealing with investigatory records compiled for law enforcement purposes. (
Id.
at p. 164.) Of course, that is a federal law not at issue here, nor are any of the alleged investigations in this case law enforcement related. Without a pin cite, the Court does not see the relevance of this decision to the instant case, in which the Court has already held that matters which are attorney work product may be withheld subject to a privilege log.
The County also quotes from California Evidence Code section 1040. However, the County does not discuss whether and how that code section applies to the evidence sought here. Under that statute, the County has the burden to show either that disclosure is forbidden by an Act of Congress or a statute of this state, or that disclosure is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (
Id.,
subd. (b).) The County has not done that. Accordingly, the County has not met its burden of showing that either the deliberative process privilege or Evidence Code section 1040 apply here to prevent the disclosure. (See
Labor & Workforce Development Agency v. Superior Court
(2018) 19 Cal.App.5th 12, 25 [party resisting disclosure bears burden of proving that exemption from disclosure under the California Public Records Act applies].)
Order Denying Sanctions
:
Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).)
Here, the Court finds that several of the arguments made by the County were not supported. However, the objection on behalf of third parties was not frivolous, and the Coutt does not find it unreasonable in this context for the County to oppose on behalf of those third parties, rather than voluntarily providing such third-party discovery. Accordingly, on this sole ground, the Court will not order sanctions because the circumstances render the imposition of sanctions unjust.
Conclusion
The Court GRANTS Plantiffs motion in part, limiting the production to January 1, 2020 to the present, subject to a privilege log, and with third party documents subject to a protective order. The Court DENIES the Plaintiffs request for sanctions. The Court orders further responses to be served on plaintiff within 15 court days.
Ruling
ISAIAH DRYER VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA
Aug 08, 2024 |
23STCV09605
Case Number:
23STCV09605
Hearing Date:
August 8, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
ISIAH DRYER,
Plaintiff,
vs.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA, A POLITICAL
SUBDIVISION OF THE STATE OF
CALIFORNIA; and DOES 1 through 20,
inclusive,
Defendants.
CASE NO.: 23STCV09605
[TENTATIVE] ORDER RE:
DEFENDANTS MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO FORM INTERROGATORIES, SET ONE
Date: August 8, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Defendant Regents of the University of California
RESPONDING PARTY: Plaintiff Isiah Dryer
The Court has considered the moving, opposition, and reply papers.
BACKGROUND
Plaintiff Isiah Dryer (Plaintiff) is a disabled African American former employee of Defendant Regents of the University of California (UC or Defendant). He filed a complaint on May 1, 2023, alleging multiple causes of action against Defendant. The operative Second Amended Complaint (SAC) alleges seven causes of action under the Fair Employment and Housing Act (FEHA): (1) Discrimination; (2) Failure to Prevent Discrimination; (3) Failure to Engage in a Timely Good Faith Interactive Process; (4) Failure to Provide Reasonable Accommodation; (5) Retaliation; (6) Harassment; and (7) Failure to Prevent Harassment.
Defendant served Form Interrogatories, Set One, on Plaintiff on October 10, 2023. (Newell Decl., ¶ 3; Exhibit A.) Defendant received Plaintiffs responses on November 14, 2023. (Newell Decl., ¶ 4, Ex. B).
Plaintiff responded with boilerplate objections and no verified responses.
However,
Plaintiffs counsel stated they would be supplementing with substantive responses. (Newell Decl., ¶ 7.)
In response, Defense counsel granted a two-week extension to Plaintiff to provide substantive responses.
(
Id
.)
On November 28, 2023, Plaintiff requested additional time to supplement their responses until December 12, 2023.
(Newell Decl., ¶ 8.)
Defense counsel immediately granted the request.
(
Id
.)
For the next few months, Plaintiff continued to request extensions to provide supplemental responses by December 18, 2023, January 5, 2024, January 12, 2024, January 19, 2024, February 16, 2024, and finally March 4, 2024.
(Newell Decl. ¶ 9, Exhibit C).
After eight extension requests, and nearly five months since the requests were first served upon Plaintiff, Plaintiff has not provided any substantive responses to the Form Interrogatories.
(Newell Decl. ¶ 12.)
On March 4, 2024, Defendant filed this motion to compel Plaintiffs further responses to Defendants Form Interrogatories, Set One, and request for sanctions against Plaintiff.
On April 9, 2024, Plaintiff filed a one-page opposition, asserting only one argument, that Defendant failed to request an Informal Discovery Conference (IDC) before filing this motion, against Department 56 rules.
Plaintiff is hereby informed that with the sunsetting of the requirements for an IDC in CCP Section 2016.080, there is no longer a statutory basis for Courts to impose the requirement of an IDC before a motion to compel, and this Court no longer does so.
On April 15, 2024, Defendant replied.
MEET AND CONFER
The meet and confer requirement has been met.
DISCUSSION
Under California
Code of Civil Procedure
, Section 2017.010 any person may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery may relate to the claim or defense of the party seeking discovery. (Code Civ. Proc. § 2017.010.)
The Court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (
Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 1611.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (
Id
.)
Discovery statutes are construed liberally in favor of disclosure. (
Obregon v. Superior Court
(1998) 67 Cal.App.4th 424, 434.) Where a party objects to a motion to compel, the burden is on the responding party to justify any objection. (
Fairmont Ins. Co. v. Superior Court
(2000) 22 Cal.4th 245, 255.) To support an objection to a request for production of documents, the objecting party has to establish the validity of its objections with supporting facts in order to meet its burden. (
Southern Pac. Co. v. Superior Court
(1969) 3 Cal.App.3d 195, 198.)
Issue No.1: Good Cause
A motion to compel further responses to the production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc. § 2031.310(b)(1).) Code Civ. Proc., § 2031 . . . which applies to document production requests served on a party, requires a party seeking to compel such production to
set forth the specific facts
showing good cause justifying the discovery sought by the inspection demand.
(
Calcor Space Facility, Inc. v. Superior Court
(1997) 53 Cal.App.4th 216, 223-224, emphasis added.) In law and motion practice, factual evidence is supplied to the court by way of declarations. (
Id
. at 224.)
The Court finds that Defendant has met the good cause requirement to justify Plaintiffs further responses to Form Interrogatories, Set One. Form Interrogatories are prepared by the Judicial Council, and by their very nature are reasonably calculated to lead to the discovery of admissible evidence.
Based on the foregoing, the Court GRANTS Defendants motion to compel Plaintiffs further responses to Defendants first set of form interrogatories and orders that complete, verified responses without further objections are to be served by Plaintiff on Defendant within twenty days of the date of this order.
Issue No. 2: Monetary Sanctions
Defendant asserts that monetary sanctions should be imposed against Plaintiff for failure to respond or to submit to an authorized method of discovery under CCP § 2023.010. Defendant requests monetary sanctions of $1,208.00 against Plaintiff. The Court finds that the pro per Plaintiffs lack of understanding of the discovery motion process is good cause for this Court to DENY Defendants request for monetary sanctions for this single occasion.
No such forebearance should be expected should a similar situation occur in the future.
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 8th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
MARTIN HUTTO VS CITY OF TORRANCE, A MUNICIPAL CORPORATION, ET AL.
Jul 26, 2024 |
23TRCV01212
Case Number:
23TRCV01212
Hearing Date:
July 26, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
MARTIN HUTTO,
Plaintiff,
Case No.:
23TRCV01212
vs.
[TENTATIVE] RULING
CITY OF TORRANCE,
Defendant.
Hearing Date:
July 26, 2024
Moving Parties:
Defendant City of Torrance
Responding Party:
Plaintiff Martin Hutto
(1)
Motion to Compel Further Responses to Special Interrogatories, Set One
(2)
Motion to Compel Further Responses to Requests for Production of Documents, Set One
The Court considered the moving, opposition, and reply papers.
RULING
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
BACKGROUND
On April 19, 2023, plaintiff Martin Hutto filed a complaint against City of Torrance and Torrance Police Department for (1) violation of POBRA, (2) declaratory relief, and (3) Labor Code §1102.5.
On April 25, 2023, the court (Judge Frank) issued a TRO on April 25, 2023.
On September 15, 2023, the court issued a preliminary injunction.
LEGAL AUTHORITY
45-Day Rule
:
This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand.
CCP §§2031.310(c), 2016.050; see
Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 745.
The 45-day time limit is mandatory and jurisdictional.
Sexton v. Superior Court
(1997) 58 Cal. App. 4th 1403, 1410.
The parties, however, can also agree in writing on a specific later date by which to file the motion to compel.
CCP §2031.310(c).
Meet-and-Confer Requirement
:
The motion to compel further responses must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court (so-called meet and confer).
CCP §§2016.040, 2031.310(b)(2).
Separate Statement
:
Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.
This includes a motion to compel further responses to demand for inspection of documents or tangible things.
CRC Rule 3.1020(a)(3).
Interrogatories
CCP §2030.300 states:
(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .
CCP §2030.220 states:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
CCP §2030.230 states:
If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. . . .
CCP §2030.010(b) provides:
An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on
information obtained or legal theories developed in anticipation of litigation or in preparation for
trial.
Request for Production of Documents
On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:
(1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.
CCP § 2031.310(a).
A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.
CCP § 2031.220.
A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.
This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.
This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.
CCP § 2031.230.
A motion to compel further response to requests for production shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.
CCP § 2031.310(b)(1).
To establish good cause, the burden is on the moving party to show both:
[1]
Relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the case);
and
[2]
Specific facts justifying discovery
(e.g., why such information is necessary for trial preparation or to prevent surprise at trial).
The fact that there is
no alternative source
for the information sought is an important factor in establishing good cause for inspection.
But it is
not
essential in every case.
Weil & Brown,
Civil Procedure Before Trial
, 8:1495.6 (citations omitted).
Declarations are generally used to show the requisite good cause for an order to compel inspection.
The declarations must contain specific facts rather than mere conclusions.
Id.
at 8:1495.7 (citation omitted).
The declarations may be on information and belief, if necessary.
However, in such cases, the specific facts supporting such information and belief (the sources of the information) must also be alleged.
Id.
at 8:1495.8 (citation omitted).
Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and specific facts constituting good cause for inspection.
Id.
at 8:1495.9.
If good cause is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).
Id.
at 8:1496 (citation omitted).
DISCUSSION
Defendant City of Torrance requests that the Court compel plaintiff to respond further to Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60.
The Court notes only the requests that remain at issue based on the reply.
In the reply, the City withdrew its motion as to Special Interrogatories, Nos. 1-46, 48, 50-53, 55, 57, 59-59, 61, 63, 65-66, 68-72, 74, 83, 85, 87-89, and 91-102 and Requests for Production of Documents, Nos. 3-4, 8-13, 26, 38, 41, 44, 50, and 54-57 based on plaintiff providing supplemental responses.
On December 19, 2023, defendant served its discovery requests.
On February 12, 2024, plaintiff served responses and objections.
On July 1, 2024, pursuant to joint stipulation and order, the hearing on the motions was continued to allow the parties to reach a stipulation regarding the discovery and use in the litigation of plaintiffs confidential police officer personnel records and information, and protective order, without the need for a noticed Pitchess motion.
The complaint alleges that that plaintiff was investigated and given educational reminders in connection with two arrests he made.
Plaintiff apprehended suspects in a catalytic converter theft on May 17, 2021 and commented to one of the arrestees, Welcome to Torrance.
Plaintiff was investigated for the comment and invoked his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and/or the Meyers-Milias Brown Act, including use of a representative of his choice.
Defendants ultimately concluded the investigation and gave plaintiff an educational reminder for misconduct based on the Welcome to Torrance comment.
Plaintiff arrested a suspect who was disturbing the peace on March 4, 2022.
During the arrest,
plaintiff used force against the suspect, who ultimately stabbed plaintiffs partner in the clavicle
area with a pen and struck plaintiff in the head.
Plaintiff was administratively investigated for his use of force during the arrest.
Defendant ultimately concluded that plaintiff should be given an educational reminder to be more thorough in his reports of use of force.
Plaintiff filed a personnel complaint against Chief Hart for inappropriate comments and social media posts on November 2, 2022.
Plaintiff alleges Torrance Police Department revived the Internal Affairs investigation against him after his complaint.
Plaintiff alleges defendants violated his rights under POBRA, including by failing to provide proper notice of the nature of the investigations, subjecting plaintiff to punitive action and/or threatening him with punitive action for exercising his rights under POBRA and placing comments adverse to his interest in his personnel file. Plaintiff also alleges that defendants committed whistleblower retaliation in response to his complaints about Chief Harts inappropriate comments and social media posts.
Special interrogatories
Defendant contends that Special Interrogatories, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 remain at issue because they do not implicate confidential peace officer personnel information and that plaintiffs Pitchess objections are without merit.
Defendant also argues that plaintiffs response to Nos. 60, 62, 64, 73, 84, 86, and 90 directing defendant to other documents is improper under CCP §2030.230 because the interrogatories do not necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from.
In the opposition, plaintiff contends that the discovery requests were improperly served because they were sent via email although the parties had not stipulated to email service.
Plaintiff also argues that the motion was filed untimely on April 2, 2024.
In reply, defendant contends that its discovery requests were properly electronically served pursuant to CRC Rule 2.251(c).
Moreover, defendant argues, the motion was timely filed on April 2, 2024 because April 1 was a court holiday.
The Court finds that the request was properly served and that the motion was timely filed. The Court also finds that plaintiffs objections lack merit, including based on Pitchess.
The remaining special interrogatories at issue do not implicate Pitchess for the reasons argued by defendant.
Further, plaintiffs responses under CCP §2030.230 are improper.
The motion is thus GRANTED.
Requests for production of documents
Defendant asserts that Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 remain at issue.
Defendant argues that as to the remaining requests, plaintiff has failed to state whether plaintiff possesses additional documents that do not constitute protected police officer personnel records and information and has failed to produce any such non-Pitchess record documents, in compliance with CCP §2031.240.
Under CCP §2031.240, (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
Defendant argues that even if Pitchess applies to any responsive peace officer personnel records, plaintiff still has the ability to either identify and produce any non-personnel records and information, or state he cannot comply because he has no records.
Further, defendant asserts, the City is entitled to obtain documents within plaintiffs possession, custody, or control, irrespective of whether the City may already possess or have access to them, citing to CCP §2031.010.
Defendant further argues that plaintiffs objections that certain defined terms (communication, relate, and refer) are overly broad and ambiguous are without merit because none of the Citys requests utilize the defined term communication and only Request Nos. 54-60 include refer or relate, and such requests are limited in scope.
In opposition, plaintiff argues that a Pitchess motion was and is required as the requests seek personnel files.
Plaintiff also argues that the requests were improperly served via email and that the motion was untimely filed.
The Court finds that the requests were properly served, and the motion was timely filed.
The Court also finds that plaintiffs responses do not comply with CCP §2031.240 and that plaintiffs objections lack merit as to non-Pitchess documents.
The motion is GRANTED.
Sanctions
Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery.
Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
CCP § §2030.300(d), 2031.310(h).
Cal. Rules of Court, Rule 3.1348(a) states:
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court denies each partys request for sanctions.
ORDER
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
Defendant is ordered to give notice of ruling.
Ruling
TISGAR HAROUN VS HOCB RETAIL LLC, ET AL.
Jul 30, 2024 |
24STCV00648
Case Number:
24STCV00648
Hearing Date:
July 30, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
TISGAR HAROUN,
Plaintiff,
vs.
HOCB RETAIL LLC, HOUSE OF
CB USA, LLC, SIRENS DESIGN
LLC, EGYPTSIA NEVERS, and
DOES 1 through 100, inclusive,
Defendants.
CASE NO.:
24STCV00648
[TENTATIVE] ORDER RE:
MOTION TO COMPEL DEFENDANTS RESPONSES TO FORM INTERROGATORIES GENERAL AND EMPLOYMENT LAW (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE); REQUEST FOR $1,050.00 IN MONETARY SANCTIONS
Date: July 30, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff Tisgar Haroun (Plaintiff)
RESPONDING PARTY: Defendants HOCB Retail LLC, House of CB USA, LLC, and Sirens Design LLC (collectively, Defendants)
The Court has considered the moving papers and the declaration filed in response to the motion.
BACKGROUND
This case arises from an employment dispute.
On January 10, 2024, Plaintiff filed a complaint asserting various causes of action, including wrongful termination, discrimination and retaliation.
On May 21, 2024, Plaintiff filed a single motion (the Motion) to compel Defendants responses to the following four (4) sets of discovery served on Defendants: (1) Form Interrogatories General, Set One; (2) Form Interrogatories Employment Law, Set One; (3) Special Interrogatories, Set One; and (4) Request for Production of Documents, Set One (collectively Discovery Requests).
Plaintiff also seeks an award of monetary sanction in the amount of $1,050.
On July 8, 2024, Defendants counsel, Calvin House, submitted a declaration in response to Plaintiffs Motion (House Decl.).
DISCUSSION
Legal Standard
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here,
Plaintiff served Defendants with the Discovery Requests on February 19, 2024.
(Declaration of Levon Derkalousdian, Esq. (Derkalousdian Decl.), ¶ 2.)
As of May 17, 2024, Defendants have not provided responses to any of the Discovery Requests.
(Derkalousdian Decl., ¶ 8.)
Plaintiff now moves for an order compelling Defendants to serve responses to the Discovery Requests.
Defendants counsel submitted a declaration on July 8, 2024, stating that Defendant served Plaintiff with verified responses to the Discovery Requests on May 31, 2024, without objections, and attached said discovery responses.
(House Decl., ¶ 2, Exhs. 1-12.)
Accordingly, since verified responses, without objections, have now been served, the Motion is MOOT.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).)
[T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2031.300, subd. (c).)
Here, the declaration submitted by Defendants counsel offers no justification for the delayed responses.
(House Decl.)
Thus, the Court finds that monetary sanctions are warranted.
Plaintiff requests monetary sanctions in the total amount of $1,050, representing two hours spent in preparing the Motion plus an anticipated one hour for preparing a reply and arguing the Motion, based on an hourly rate of $350.
(Derkalousdian Decl., ¶ 9.)
The Court finds that because no reply was prepared and the Motion itself is moot, although it was filed before responses were served, reasonable sanctions are in the amount of $700 for the two hours required to prepare the Motion.
Accordingly, Plaintiffs request for sanctions is granted in part, in the reasonable amount of $700.
Defendants and their counsel are jointly and severally liable for this amount, which is payable to Plaintiff within twenty days of the date of this order.
Improperly Combined Motions
The Court notes, however, that Plaintiff has impermissibly combined motions seeking relief for each discovery device.
A motion must be brought separately for each discovery method at issue.
(Govt. Code, § 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing]; The Rutter Group California Practice Guide: Civil Procedure Before Trial, Ch. 8F-7 [8:1136] [Motions to compel compliance with separate discovery requests ordinarily should be filed separately.].)
Plaintiff should have filed four separate motions, each with its own filing fee; instead, Plaintiff filed only one motion and paid one filing fee.
Therefore, Plaintiff is ordered to pay three additional $60 filing fees for a total of $180 as a condition to the granting of this Motion.
The Motion is MOOT; however, monetary sanctions are awarded in favor of Plaintiff in the total amount of $750, to be paid by Defendants and their counsel within 20 days of the date of this Order.
Plaintiff is ordered to pay $180 in previously unpaid filing fees to the Court within twenty days of the date of this order.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 30th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
PATRICIA J. ESPINOZA ROSALES VS M & M PROPERTY MGT, INC., A CALIFORNIA CORPORATION
Aug 01, 2024 |
21STCV25648
Case Number:
21STCV25648
Hearing Date:
August 1, 2024
Dept:
48
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
PATRICIA J. ESPINOZA ROSALES,
Plaintiff,
vs.
M & M PROPERTY MGT, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 21STCV25648
[TENTATIVE] ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL
Dept. 48
8:30 a.m.
August 1, 2024
Jasmine J. Badawi, counsel of record for Plaintiff/Cross-Defendant Patricia J. Espinoza Rosales, seeks to be relieved as counsel.
Counsels declaration states that there has been a breakdown in the attorney-client relationship.
No party opposed the motion.
Absent a showing of resulting prejudice, an attorneys request for withdrawal should be granted.
(
People v. Prince
(1968) 268 Cal.App.2d 398, 406.)
Counsels motion complies with California Rules of Court, rule 3.1362.
Trial is not until January 21, 2025, and there is no prejudice to Plaintiff/Cross-Defendant.
The unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of the signed Form MC-053 order and this order on Patricia J. Espinoza Rosales and all parties who have appeared.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.
If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.
Dated this 1st day of August 2024
Hon. Thomas D. Long
Judge of the Superior Court
Ruling
GIAVANNA PAPASAVVAS VS 1016 INDUSTRIES INC; A FLORIDA CORPORATION, ET AL.
Jul 29, 2024 |
22STCV36344
Case Number:
22STCV36344
Hearing Date:
July 29, 2024
Dept:
68 Dept. 68
Date: 7-29-24
Case # 22STCV36344
Trial Date: 11-12-24 c/f 10-21-24 c/f 8and rour-19-24 c/f 7-22-24 c/f 6-3-24
FURTHER DOCUMENTS/ADMISSIONS/SPECIAL INTERROGATIRES
MOVING PARTY: Defendant, 1016 Industries
RESPONDING PARTY: Plaintiff, Giavanna Papasavvas
RELIEF REQUESTED
Motions to Compel Further Responses
SUMMARY OF ACTION
Plaintiff VAV Plastics, Inc. manufactures plastic bottles. Plaintiff also offers custom design services. Plaintiff alleges Defendant Arminak Solutions dba KBL Cosmetics was a customer. Between August 3, 2020 and October 22, 2020, Defendant ordered $2,540,000 in manufactured products. The order also required the development of special molds, plus pallets for delivery, which Plaintiff alleges was separately invoiced for $11,000 and $1,036 ($12,306 total).
Plaintiff alleges most of the product ordered has been delivered, but Defendant refuse to take the remaining portion of the order and ordered the cessation of future production.
Plaintiff alleges a remaining balance due of $4342,540.21. Finally, Plaintiff also alleges an entitlement to reimbursement for special equipment acquisitions totaling $54,337.91. The total sum for the bottles, molds and pallets, and equipment amounts to $408,914.12.
On February 17, 2021, Plaintiff filed its complaint for Breach of Oral Contract, and Common Counts. On June 4, 2020, Defendant answered and filed a cross-complaint for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Declaratory Relief, Breach of Express Warranty, Breach of Implied Warranty of Merchantability, Breach of Implied Warranty of Fitness for a Particular Purpose, and Negligent Interference with Prospective Economic Advantage. On August 2, 2021, Cross-Complainants filed a first amended cross-complaint for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Declaratory Relief, Breach of Express Warranty, Breach of Implied Warranty of Merchantability, Breach of Implied Warranty of Fitness for a Particular Purpose, and Negligent Interference with Prospective Economic Advantage
RULING
:
OSC re: Discovery Referee.
Defendant, 1016 Industries
scheduled four concurrent motions to compel further responses. While the court specially set the subject motions, it appears the parties continue to file more and more motions to compel further responses even well after the trial date, and ask the court to adjust the parties latest developments, including the latest rejected stipulation. A review of the history of the parties discovery disagreements shows multiple previously filed motions, ongoing disputes, and at least four prior trial continuances, at least in part, presumably due to said discovery disputes.
The court favors robust discovery thereby allowing the best prosecution and defense during the adjudication of all actions presented. The court however also declines to schedule Independent Discovery Conferences due to an already impacted calendar. Any and all law disputes must be addressed by law and motion with applicable new motion limits instituted. Given the reviewed history of the disputes, and voluminous and complexity level of the disputes, the Court hereby sets this matter for an OSC re referral to a discovery referee.
When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. (Code Civ. Proc., § 639, subd. (a)(5).) Appointment requires a court finding of exceptional circumstances. (Code Civ. Proc., § 639, subd. (d)(2).) Absent agreement of all parties,
courts may not make blanket referrals, except in the unusual case where a majority of factors favor reference, including: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. (
Taggares v. Superior Court
(1998) 62 Cal. App. 4th 94, 105.) Where one or more of the above factors unduly impact the courts time and/or limited resources, the court is clearly within its discretion to make an appropriate reference. (Id. at 106.)
Again, the court understands the prior use and perhaps reliance on the IDC system. The court also faces impacts from the recent ransomware attack and ongoing impacted calendars preceding the operations shut down now further exacerbating the situation. The court is also mindful of the November 12, 2024, trial date.
The court therefore sets an OSC re: Discovery Referee for August 16, 2024 at 8:30 a.m., with the purpose of allowing the parties to consider their options while still allowing for potential appointment well before the trial date. If the parties wish to stipulate in advance of the hearing, the court invites such an agreement. The parties may consider criteria such as costs of the respective referee, allocation of costs for any discovery involving third parties, authority to award sanctions and/or attorneys by the referee, availability, etc.
The court can and has set expedited referee referrals in the past, and therefore strongly encourages the parties to check availability. The court will also accelerate the referee report review in order to facilitate resolution of the claims.
If the parties refuse to stipulate, the parties may submit any opposition to the appointment no later than nine (9) court days before the August 16, 2024 hearing datedue date of August 5, 2024. Any briefs shall be no more than five (5) pages of points and authorities, plus any declarations. The court will issue a tentative ruling following a review of the briefs, if applicable. The four motions
are placed off-calendar pending the OSC and subject to either presentation before the referee or reset on the court calendar.
Defendant to give notice.
Ruling
ELIZABETH SHUAI WONG VS FLIPFIT, ET AL.
Aug 09, 2024 |
23STCV30186
Case Number:
23STCV30186
Hearing Date:
August 9, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ELIZABETH SHUAI WONG
,
Plaintiff,
vs.
FLIPFIT, f.k.a. HUMANS, INC., a Delaware
corporation, NOORULDEEN ALAARIF,
a.k.a. NOOR AGHA, an individual, and
DOES 1 to 100, inclusive
,
Defendants.
CASE NO.:
23STCV30186
[TENTATIVE] ORDER RE:
MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIESS, SET ONE
Date: August 9, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff
Elizabeth Shuai Wong
(Plaintiff)
RESPONDING PARTY: Defendant
Flipfit, fka Humans, Inc. (Defendant)
The Court has considered the moving, opposition and reply papers.
BACKGROUND
This is a representative action filed by Plaintiff on December 11, 2023, seeking recovery of civil penalties under the Private Attorneys General Act of 2004, California Labor Code §2698,
et seq
. (PAGA), for alleged Labor Code violations of:
failure to pay minimum wage, failure to pay overtime wages, failure to provide all required meal periods, failure to authorize or permit all required rest periods, failure to pay all earned wages each pay period, failure to provide accurate wage statements, failure to pay vested vacation wages, failure to reimburse necessary business expenditures, failure to pay all wages due upon separation of employment, failure to maintain an effective Injury and Illness Prevention Program and retaliation for use of Covid-19 supplemental sick pay.
On April 22, 2024, Plaintiff filed a Motion to Compel Defendants Responses to Plaintiffs Requests for Production, Set One (the RFPs Motion), and a Motion to Compel Defendants Responses to Plaintiffs Special Interrogatories, Set One (the SIs Motion) (collectively, the Motions).
Defendant filed a consolidated opposition to the Motions on July 9, 2024, and Plaintiff filed a reply on July 15, 2024.
DISCUSSION
SIs Motion
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
Here, Plaintiff served Defendant with Special Interrogatories, Set One (SIs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of SIs Motion, ¶ 3.)
Defendant had not served responses to the SIs as of the date of filing of the SIs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Declaration of Matthew Theriault (Theriault Decl.), ¶ 10.)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the SIs on June 7, 2024.
(Supplemental Declaration of Leonard H. Sansanowicz in Support of Plaintiffs Reply (Sansanowicz Supp. Decl.), ¶ 22.)
Accordingly, since responses to the SIs, without objections, have now been served, the SIs Motion is MOOT.
To the extent that Plaintiff contends that the responses are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
RFPs Motion
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here, Plaintiff served Defendant with Requests for Production of Documents, Set One (RFPs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of RFPs Motion, ¶ 3.)
Defendant had not served responses to the RFPs as of the date of filing of the RFPs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Theriault Decl., ¶ 10.)
Additionally, on July 9, 2024, Defendant produced documents.
(
Id.
)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the RFPs on June 7, 2024.
(Sansanowicz Supp. Decl., ¶ 22.)
Accordingly, since responses to the RFPs, without objections, have now been served, and documents have been produced, the RFPs Motion is MOOT.
To the extent that Plaintiff contends that the responses and documents produced are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.290, subd. (c).)
[T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2031.300, subd. (c).)
In this case, Defendant asserts that the delayed responses were caused by unexpected medical issues experienced by the previous attorney handling the case. The Court also acknowledges that there have been multiple changes in the counsel representing Defendant. Furthermore, Plaintiff agreed to an extension for Defendant to provide responses by June 7, 2024, and Defendant complied with this deadline.
(Sansanowicz Supp. Decl., ¶¶ 17-22;
Theriault Decl., ¶¶ 8-10.)
Thus, the Court finds that, under the circumstances, there is substantial justification for the delayed responses and that monetary sanctions are not warranted.
Accordingly, no sanctions are imposed.
RULING
The Motions are DENIED as moot.
The requests for monetary sanctions are also DENIED.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 9
th
day of August 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Preview
1 JANINE MENHENNET (SBN 63501) Of Counsel CIELO & DEI VOLUNTAS PC 2 LUCIANO STANZIONE (SBN 281476) Ls@cielolawfirm.com 3 CIELO & DEI VOLUNTAS PC 1968 S. Coast Hwy, Ste. 1415 4 Laguna Beach, CA 92651 5 Telephone: 949.556.3677 6 Attorneys for Plaintiff Jason Christopher Toothman 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 12 Case No. 13 JASON CHRISTOPHER COMPLAINT FOR DAMAGES 14 TOOTHMAN, an individual, 1. DISABILITY DISCRIMINATION 15 Plaintiff, 2. FAILURE TO ACCOMMODATE DISABILITY 16 vs. 3. FAILURE TO ENGAGE IN THE 17 INTERACTIVE PROCESS 4. AGE DISCRIMINATION 18 RALPHS GROCERY COMPANY, an 5. HARASSMENT, HOSTILE WORK ENVIRONMENT 19 Ohio Corporation, ROSIE 6. RETALIATION, REQUESTING 20 AVUNDZHYAN, an individual and ACCOMMODATION 7. RETALIATION 21 DOES 1 THROUGH 10, inclusive 8. FAILURE TO PREVENT 22 Defendants. DISCRIMINATION, HARASSMENT AND RETALIATION 23 9. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY 24 10. UNLAWFUL RETALIATION IN 25 VIOLATION OF LABOR CODE § 1102.5 26 11. UNLAWFUL DISCRIMINATION 27 AND RETALIATION IN VIOLATION OF LABOR CODE § 28 6310 COMPLAINT Toothman v. Ralphs Grocery Company., et al. -1- 12. UNLAWFUL RETALIATION IN 1 VIOLATION OF LABOR CODE § 2 6311 13. FAILURE TO PAY OVERTIME AND 3 DOUBLE TIME 4 14. FAILURE TO PAY ALL WAGES UPON TERMINATION 5 DEMAND FOR JURY TRIAL 6 7 8 9 INTRODUCTION 10 This is an action brought by Plaintiff JASON CHRISTOPHER TOOTHMAN 11 (“Plaintiff”) against RALPHS GROCERY COMPANY, an Ohio Corporation, ROSIE 12 AVUNDZHYAN, an individual, and other as of yet unnamed Defendants (hereinafter 13 collectively “Defendants”). Plaintiff seeks damages, attorneys’ fees, and costs of suit. 14 THE PARTIES 15 1. Plaintiff is a former employee of Defendants and a resident of the 16 County of Los Angeles, State of California. 17 2. Plaintiff is informed and believes, and thereon alleges that Defendant 18 RALPHS GROCERY COMPANY is an Ohio Corporation, registered to do business in 19 California, and doing business in the County of Los Angeles, State of California. 20 3. On information and belief, Defendant ROSIE AVUNDZHYAN is, and at 21 all relevant times was, a competent adult residing in Los Angeles County, California. 22 4. On information and belief, Defendant ROSIE AVUNDZHYAN at all 23 relevant times, was a director, officer, and/or managing agent of Defendant within 24 the meaning of California Labor Code section 558.1 and California Civil Code section 25 3294. On information and belief, ROSIE AVUNDZHYAN, at all relevant times, 26 exercised substantial discretion in her decision-making such that her decisions 27 ultimately determined policy of the company. On information and belief, ROSIE 28 AVUNDZHYAN, throughout the relevant liability period, subjected Plaintiff and COMPLAINT Toothman v. Ralphs Grocery Company., et al. -2- 1 other aggrieved employees to the unlawful working conditions described in this 2 Complaint. 3 5. At all relevant times each and every Defendant was the agent, 4 representative, employee, servant or affiliated entity of every other Defendant and, 5 in doing the acts herein alleged, each Defendant is liable and responsible to Plaintiff 6 for the acts of every other defendant. 7 6. Plaintiff is informed and believes, and on that basis alleges that, at all 8 relevant times, each such fictitiously named defendant was and is responsible in some 9 manner for the occurrences herein alleged, and that Plaintiff’s injuries and/or 10 damages were and are directly and/or proximately caused thereby. Plaintiff is 11 informed and believes, and on that basis alleges that each such fictitiously named 12 defendant is directly and/or indirectly liable for one or more of the causes of action 13 set forth herein. 14 7. Plaintiff is informed and believes and on that basis alleges that, at all 15 relevant times, each of the defendants, including each fictitiously named defendant, 16 was the agent, servant, joint venturer, authorized representative and/or employee of 17 each of the remaining defendants, and, except as provided herein, in doing the acts 18 and things hereinafter alleged, was acting within the course and scope of said agency, 19 joint venture, representation, servitude and/or employment, consent, approval, and 20 subsequent satisfaction of each of the remaining defendants. Each of the Defendants 21 were authorized and empowered by each of the other defendants to act and did act as 22 the principal, employee or agent of each of the other defendants. Plaintiff is further 23 informed and believes, and on that basis alleges, that, except as provided herein, each 24 defendant was acting within the course and scope of his/her/its authority in 25 performing the acts herein alleged, and that the acts of each defendant as alleged 26 herein were authorized and/or ratified by the other defendants. 27 /// 28 /// COMPLAINT Toothman v. Ralphs Grocery Company., et al. -3- 1 GENERAL ALLEGATIONS 2 8. This Court is the proper court and this action is properly filed in the 3 County of Los Angeles and in this judicial district because Defendants do business in 4 the County of Los Angeles and because Defendants’ obligations and liability arise 5 therein. 6 9. The true names and capacities, whether individual, corporate, associate, 7 or otherwise, of DOES 1 through 10 are unknown to Plaintiff, who therefore sues the 8 DOE Defendants by fictitious names. Plaintiff will amend this Complaint to show 9 their true names and capacities when they have been ascertained. 10 10. On information and belief, each and all of the acts and omissions alleged 11 herein were performed by or are attributable to all Defendants, each acting as agents 12 or employees, or under the direction and control of each of the other Defendants, and 13 that said acts and failures to act were within the course and scope of said agency, 14 employment and/or direction and control. On information and belief, Defendants 15 were and are the agents of each other. 16 11. Plaintiff further alleges that Defendants complained of herein operated 17 as a joint employer and/or integrated enterprise with another defendant or other 18 defendants, each such defendant is jointly and severally liable as an employer. In the 19 event that any defendant was acting as the alter ego of another defendant or other 20 defendants such that there is or was such a unity and identity of interest between or 21 among each and all said defendants that adherence to the legal fiction of separate 22 existence would, under the particular circumstances that exist or existed, would 23 sanction fraud or promote injustice, it would be an inequitable result to fail to 24 disregard any such separateness of legal personality. 25 12. On information and belief, Defendants DOES 1 through 10 are the 26 partners, owners, shareholders, or managers of Defendants, and were acting on 27 behalf of Defendants in the payment of wages to Plaintiff. 28 /// COMPLAINT Toothman v. Ralphs Grocery Company., et al. -4- 1 FACTS COMMON TO MORE THAN ONE CAUSE OF ACTION 2 13. Plaintiff worked for Defendants from around December 2023 to 3 February 2, 2024, initially as a Cook in the Deli Department. Throughout his 4 employment, Plaintiff was a good performer, and was assigned more tasks and 5 different responsibilities by Defendants. 6 14. After beginning to work for Defendant’s, Plaintiff noticed multiple 7 unhealthy food handling practices, including but not limited to: employees not 8 washing their hands before manipulating food; cross contamination; raw food being 9 mixed with cooked food; liquid emanating from chickens and other foods 10 contaminating the area and possibly other foods; numerous other unsafe practices; a 11 general lack of care for customer’s health and safety. 12 15. Plaintiff complained to Defendants repeatedly about, including but not 13 limited to: mishandling of the food; food being sent out for customers consumption 14 that could be dangerous/unhealthy; a general unhealthy work environment; 15 employees not washing their hands before manipulating food; cross contamination; 16 raw food being mixed with cooked food; liquid emanating from chickens and other 17 foods contaminating the area and possibly other foods; numerous other unsafe 18 practices; a general lack of care for customer’s health and safety; Defendants 19 fabricating issues about his performance after complaining; Defendants not paying 20 Plaintiff all hours worked; and others. 21 16. After lodging his complaints, Plaintiff began suffering harassment and 22 retaliation from Defendants, including but not limited to: subjecting him to a higher 23 level of scrutiny; treating Plaintiff poorly; threatening Plaintiff with termination; 24 reducing Plaintiff’s hours and overtime; making comments about their ability to 25 terminate Plaintiff as he was in “probation”; unnecessarily reprimanding Plaintiff; 26 and using pretexts to suspend and terminate Plaintiff. 27 /// 28 /// COMPLAINT Toothman v. Ralphs Grocery Company., et al. -5- 1 17. The harassment and retaliation suffered by Plaintiff generated a hostile 2 work environment severe enough for Plaintiff to develop stress, anxiety and physical 3 manifestation of the discomfort and distress he was being subjected to. Plaintiff was 4 prescribed off work by his doctor and requested medical leave and accommodations 5 from Defendants. 6 18. Plaintiff was released back to work with restrictions related to his stress 7 related disabilities. 8 19. On or around February 2, 2024, Plaintiff was terminated. 9 20. During Plaintiff’s employment with Defendant, Plaintiff was permitted, 10 required or suffered to worked in excess of eight (8) hours in a day or forty (40) hours 11 in a week without receiving all earned overtime and double time pay for all overtime 12 and double time hours worked. Defendant ROSIE AVUNDZHYAN had direct control 13 of Plaintiff’s overtime, clock in and clock out times, and related aspects of Plaintiff’s 14 records. 15 21. Plaintiff filed an administrative complaint with the California Civil 16 Rights Department. On April 21, 2024. The Civil Rights Department issued Plaintiff 17 a right to sue letter, attached here as Exhibit A. 18 FIRST CAUSE OF ACTION 19 (Disability Discrimination – Violation of Govt. Code §12940(a)) 20 (Plaintiff against All Defendants 21 Except Defendant ROSIE AVUNDZHYAN) 22 22. Plaintiff restates and incorporates by reference each and every one of 23 the above allegations as though they were fully set forth herein. 24 23. At all times relevant to this Complaint, the Fair Employment and 25 Housing Act (“FEHA”) codified in Government Code §12900 et seq. was in full force 26 and effect and makes it unlawful for an employer to discriminate against an employee 27 because of the employee’s actual or perceived disability/medical condition. 28 24. Pursuant to Government Code §§ 12926 and 12926.1, Plaintiff has an COMPLAINT Toothman v. Ralphs Grocery Company., et al. -6- 1 actual or perceived disability, was limited in major life activities, had a record of a 2 disability, and was regarded as or treated as having a disability by Defendants. 3 25. Defendants engaged in unlawful employment practices in violation of 4 the FEHA as described herein. 5 26. Plaintiff is informed and believes and thereon alleges that the actual or 6 perceived disability was a motivating factor in Defendants' termination of Plaintiff’s 7 employment. 8 27. As a proximate result of the wrongful conduct of Defendants, and each 9 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 10 and other employment benefits in an amount according to proof at the time of trial. 11 28. As a proximate result of the wrongful conduct of Defendants, and each 12 of them, Plaintiff has suffered emotional distress, physical manifestations of 13 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 14 general damages, in an amount according to proof at the time of trial. 15 29. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 16 to issue a judicial determination of the rights and duties of the parties. A judicial 17 declaration is necessary and appropriate such that Defendants may also be aware of 18 its obligations under the law to not engage in discriminatory practices. Plaintiff 19 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 20 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 21 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 22 30. The actions of Defendants as alleged herein were carried out with 23 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 24 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 25 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 26 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 27 conduct described herein was engaged in by officers, directors, and/or managing 28 agents for the Defendant or ratified by officers, directors, and/or managing agents. COMPLAINT Toothman v. Ralphs Grocery Company., et al. -7- 1 31. Plaintiff has incurred and continues to incur attorneys' fees and legal 2 expenses in an amount according to proof at the time of trial. 3 SECOND CAUSE OF ACTION 4 (Failure to Accommodate Disability – Govt. Code §12940(m)) 5 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN) 6 32. Plaintiff restates and incorporates by reference each and every one of 7 the above allegations as though they were fully set forth herein. 8 33. Government Code §12940(m) provides that it is unlawful for an 9 employer to fail to make a reasonable accommodation for the actual or perceived 10 disability of an employee. 11 34. Defendants failed to make reasonable accommodations for Plaintiff's 12 actual or perceived disability. 13 35. As a proximate result of the wrongful conduct of Defendants, and each 14 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 15 and other employment benefits in an amount according to proof at the time of trial. 16 36. As a proximate result of the wrongful conduct of Defendants, and each 17 of them, Plaintiff has suffered emotional distress, physical manifestations of 18 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 19 general damages, in an amount according to proof at the time of trial. 20 37. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 21 to issue a judicial determination of the rights and duties of the parties. A judicial 22 declaration is necessary and appropriate such that Defendants may also be aware of 23 its obligations under the law to not engage in discriminatory practices. Plaintiff 24 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 25 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 26 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 27 38. The actions of Defendants as alleged herein were carried out with 28 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full COMPLAINT Toothman v. Ralphs Grocery Company., et al. -8- 1 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 2 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 3 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 4 conduct described herein was engaged in by officers, directors, and/or managing 5 agents for the Defendant or ratified by officers, directors, and/or managing agents. 6 39. Plaintiff has incurred and continues to incur attorneys' fees and legal 7 expenses in an amount according to proof at the time of trial. 8 THIRD CAUSE OF ACTION 9 (Failure to Engage in the Interactive Process - Govt. Code §12940(n)) 10 (Plaintiff against All Defendants 11 Except Defendant ROSIE AVUNDZHYAN) 12 40. Plaintiff restates and incorporates by reference each and every one of 13 the above allegations as though they were fully set forth herein. 14 41. Government Code §12940(n) provides that it is unlawful for an employer 15 to fail to engage in a timely, good faith, interactive process with the employee to 16 determine effective reasonable accommodations, if any. 17 42. Defendants failed to engage in the interactive process with Plaintiff in 18 order to accommodate Plaintiff’s actual or perceived disability. 19 43. As a proximate result of the wrongful conduct of Defendants, and each 20 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 21 and other employment benefits in an amount according to proof at the time of trial. 22 44. As a proximate result of the wrongful conduct of Defendants, and each 23 of them, Plaintiff has suffered emotional distress, physical manifestations of 24 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 25 general damages, in an amount according to proof at the time of trial. 26 45. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 27 to issue a judicial determination of the rights and duties of the parties. A judicial 28 declaration is necessary and appropriate such that Defendants may also be aware of COMPLAINT Toothman v. Ralphs Grocery Company., et al. -9- 1 its obligations under the law to not engage in discriminatory practices. Plaintiff 2 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 3 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 4 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 5 46. The actions of Defendants as alleged herein were carried out with 6 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 7 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 8 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 9 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 10 conduct described herein was engaged in by officers, directors, and/or managing 11 agents for the Defendant or ratified by officers, directors, and/or managing agents. 12 47. Plaintiff has incurred and continues to incur attorneys' fees and legal 13 expenses in an amount according to proof at the time of trial. 14 FOURTH CAUSE OF ACTION 15 (Age Discrimination – Govt. Code §12940(a)) 16 (Plaintiff Against All Defendants 17 Except Defendant ROSIE AVUNDZHYAN) 18 48. Plaintiff restates and incorporates by reference each and every one of the 19 above allegations as though they were fully set forth herein. 20 49. The Fair Employment and Housing Act ("FEHA") codified in Government 21 Code § 12940 makes it unlawful for an employer to discriminate against an employee 22 on the basis of the employee's age. 23 50. Defendants engaged in unlawful employment practices in violation of the 24 FEHA by discriminating against Plaintiff because of his age. 25 51. As a proximate result of the wrongful conduct of Defendants, and each of 26 them, Plaintiff has suffered and continues to sustain substantial losses in earnings 27 and other employment benefits in an amount according to proof at the time of trial. 28 /// COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 10 - 1 52. As a proximate result of the wrongful conduct of Defendants, and each of 2 them, Plaintiff has suffered emotional distress, physical manifestations of emotional 3 distress as defined by Internal Revenue Code Section 104(a)(2), and other general 4 damages, in an amount according to proof at the time of trial. 5 53. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 6 to issue a judicial determination of the rights and duties of the parties. A judicial 7 declaration is necessary and appropriate such that Defendants may also be aware of 8 its obligations under the law to not engage in discriminatory practices. Plaintiff 9 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an award 10 of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. City of 11 Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 12 54. The actions of Defendants as alleged herein were carried out with malice, 13 willfulness and/or reckless indifference to the rights of Plaintiff, with full knowledge 14 of their unlawfulness, and with the intent to deprive Plaintiff of rights guaranteed 15 under the law. Plaintiff is entitled to punitive damages for the purpose of deterring 16 such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ conduct 17 described herein was engaged in by officers, directors, and/or managing agents for the 18 Defendant or ratified by officers, directors, and/or managing agents. 19 55. Plaintiff has incurred and continues to incur attorneys' fees and legal 20 expenses in an amount according to proof at the time of trial. 21 FIFTH CAUSE OF ACTION 22 (Harassment, Hostile Work Environment – 23 Violation of Cal. Gov’t Code §§ 12940(j); 12923) 24 (Against All Defendants) 25 56. Plaintiff restates and incorporates by reference each and every one of 26 the above allegations as though they were fully set forth herein. 27 57. The Fair Employment and Housing Act codified in Government Code § 28 12940 makes it unlawful for an employer to harass for engaging in protected activity. COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 11 - 1 58. The Fair Employment and Housing Act codified in Government Code § 2 12923 sets forth the Legislative intent with regard to application of the laws about 3 harassment contained in the FEHA, including that harassment cases are rarely 4 appropriate for disposition on summary judgment. 5 59. Section 12923(a) states, among other things, that harassment creates a 6 hostile, offensive, oppressive, or intimidating work environment and deprives victims 7 of their statutory right to work in a place free of discrimination when the harassing 8 conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as 9 to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s 10 ability to perform the job as usual, or otherwise interfere with and undermine the 11 victim’s personal sense of well-being. 12 60. Section 12923(b) states, among other things, that a single incident of 13 harassing conduct is sufficient to create a triable issue regarding the existence of a 14 hostile work environment if the harassing conduct has unreasonably interfered with 15 the plaintiff’s work performance or created an intimidating, hostile, or offensive 16 working environment. 17 61. Section 12923(c) states, among other things, that the existence of a 18 hostile work environment depends upon the totality of the circumstances and a 19 discriminatory remark, even if not made directly in the context of an employment 20 decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence 21 of discrimination. 22 62. Defendants and each of them and/or their agents/employees engaged in 23 a pattern and practice of unlawful harassment in violation of California Fair 24 Employment and Housing Act of California Government Code §12940(j). 25 63. The harassment was sufficiently severe or pervasive as to alter 26 conditions of employment and to create a hostile or abusive work environment. 27 64. As a proximate result of the wrongful conduct of Defendants, and each 28 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 12 - 1 and other employment benefits in an amount according to proof at the time of trial. 2 65. As a proximate result of the wrongful conduct of Defendants, and each 3 of them, Plaintiff has suffered emotional distress, physical manifestations of 4 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 5 general damages, in an amount according to proof at the time of trial. 6 66. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 7 to issue a judicial determination of the rights and duties of the parties. A judicial 8 declaration is necessary and appropriate such that Defendants may also be aware of 9 its obligations under the law to not engage in discriminatory practices. Plaintiff 10 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 11 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 12 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 13 67. The actions of Defendants as alleged herein were carried out with 14 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 15 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 16 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 17 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 18 conduct described herein was engaged in by officers, directors, and/or managing 19 agents for the Defendant or ratified by officers, directors, and/or managing agents. 20 68. Plaintiff has incurred and continues to incur attorneys' fees and legal 21 expenses in an amount according to proof at the time of trial. 22 SIXTH CAUSE OF ACTION 23 (Retaliation, Requesting Accommodation – 24 Violation of Cal. Gov’t Code §12940(m)(2)) 25 (Plaintiff against All Defendants 26 Except Defendant ROSIE AVUNDZHYAN) 27 69. Plaintiff restates and incorporates by reference each and every one of 28 the above allegations as though they were fully set forth herein. COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 13 - 1 70. Plaintiff engaged in the protected activities of, but not limited to, 2 requesting a reasonable accommodation and requesting leave for an actual or 3 perceived disability. 4 71. Defendants retaliated in violation of the FEHA by engaging in unlawful 5 employment practices as described herein. 6 72. As a proximate result of the wrongful conduct of Defendants, and each 7 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 8 and other employment benefits in an amount according to proof at the time of trial. 9 73. As a proximate result of the wrongful conduct of Defendants, and each 10 of them, Plaintiff has suffered emotional distress, physical manifestations of 11 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 12 general damages, in an amount according to proof at the time of trial. 13 74. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 14 to issue a judicial determination of the rights and duties of the parties. A judicial 15 declaration is necessary and appropriate such that Defendants may also be aware of 16 its obligations under the law to not engage in discriminatory practices. Plaintiff 17 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 18 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 19 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 20 75. The actions of Defendants as alleged herein were carried out with 21 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 22 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 23 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 24 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 25 conduct described herein was engaged in by officers, directors, and/or managing 26 agents for the Defendant or ratified by officers, directors, and/or managing agents. 27 76. Plaintiff has incurred and continues to incur attorneys' fees and legal 28 expenses in an amount according to proof at the time of trial. COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 14 - 1 SEVENTH CAUSE OF ACTION 2 (Retaliation – Violation of Cal. Gov’t Code §12940(h)) 3 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN) 4 77. Plaintiff restates and incorporates by reference each and every one of 5 the above allegations as though they were fully set forth herein. 6 78. Plaintiff engaged in protected activities as described herein. 7 79. Defendants retaliated in violation of the FEHA as described herein. 8 80. As a proximate result of the wrongful conduct of Defendants, and each 9 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 10 and other employment benefits in an amount according to proof at the time of trial. 11 81. As a proximate result of the wrongful conduct of Defendants, and each 12 of them, Plaintiff has suffered emotional distress, physical manifestations of 13 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 14 general damages, in an amount according to proof at the time of trial. 15 82. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 16 to issue a judicial determination of the rights and duties of the parties. A judicial 17 declaration is necessary and appropriate such that Defendants may also be aware of 18 its obligations under the law to not engage in discriminatory practices. Plaintiff 19 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 20 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 21 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 22 83. The actions of Defendants as alleged herein were carried out with 23 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 24 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 25 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 26 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 27 conduct described herein was engaged in by officers, directors, and/or managing 28 agents for the Defendant or ratified by officers, directors, and/or managing agents. COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 15 - 1 84. Plaintiff has incurred and continues to incur attorneys' fees and legal 2 expenses in an amount according to proof at the time of trial. 3 EIGHTH CAUSE OF ACTION 4 (Failure to Prevent Discrimination, Harassment and Retaliation – 5 Violation of Cal. Gov’t Code §12940(k)) 6 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN) 7 85. Plaintiff restates and incorporates by reference each and every one of 8 the above allegations as though they were fully set forth herein. 9 86. To Plaintiff’s knowledge, no meaningful or adequate disciplinary action 10 has been taken against any employees who discriminated and/or harassed and/or 11 retaliated against Plaintiff. 12 87. In violation of Cal. Gov. Code §12940(k), Defendants and each of them, 13 and/or their agents/employees, failed to take all reasonable steps necessary to prevent 14 and investigate unlawful discrimination, harassment, and/or retaliation from 15 occurring, and to remedy such discrimination, harassment, and/or retaliation. 16 88. As a proximate result of the wrongful conduct of Defendants, and each 17 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 18 and other employment benefits in an amount according to proof at the time of trial. 19 89. As a proximate result of the wrongful conduct of Defendants, and each 20 of them, Plaintiff has suffered emotional distress, physical manifestations of 21 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 22 general damages, in an amount according to proof at the time of trial. 23 90. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 24 to issue a judicial determination of the rights and duties of the parties. A judicial 25 declaration is necessary and appropriate such that Defendants may also be aware of 26 its obligations under the law to not engage in discriminatory practices. Plaintiff 27 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 28 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 16 - 1 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013). 2 91. The actions of Defendants as alleged herein were carried out with 3 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 4 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 5 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 6 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 7 conduct described herein was engaged in by officers, directors, and/or managing 8 agents for the Defendant or ratified by officers, directors, and/or managing agents. 9 92. Plaintiff has incurred and continues to incur attorneys' fees and legal 10 expenses in an amount according to proof at the time of trial. 11 NINTH CAUSE OF ACTION 12 (Wrongful Termination in Violation of Public Policy) 13 (Against all Defendants Except Defendant ROSIE AVUNDZHYAN) 14 93. Plaintiff restates and incorporates by reference each and every one of 15 the above allegations as though they were fully set forth herein. 16 94. Plaintiff’s employment was terminated as a result of Defendants’ 17 violation of fundamental public policies. It is against fundamental California public 18 policy to discriminate and retaliate against an employee on the basis of actual or 19 perceived disability, or for requesting accommodations. It is also against fundamental 20 California public policy to fail to engage in the interactive process and to fail to 21 accommodate an employee with a disability. It is against fundamental California 22 public policy to discriminate and retaliate against an employee for engaging in 23 protected activity. 24 95. As a proximate result of the wrongful conduct of Defendants, and each 25 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 26 and other employment benefits in an amount according to proof at the time of trial. 27 /// 28 /// COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 17 - 1 96. As a proximate result of the wrongful conduct of Defendants, and each 2 of them, Plaintiff has suffered emotional distress, physical manifestations of 3 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 4 general damages, in an amount according to proof at the time of trial. 5 97. Pursuant to Code of Civil Procedure §1060, Plaintiff requests this Court 6 to issue a judicial determination of the rights and duties of the parties. A judicial 7 declaration is necessary and appropriate such that Defendants may also be aware of 8 its obligations under the law to not engage in discriminatory practices. Plaintiff 9 believes and thereon alleges that Plaintiff is entitled to declaratory relief and an 10 award of reasonable attorney’s fees and costs under CGC section 12965(b). Harris v. 11 City of Santa Monica, 56 Cal. 4th 203, 241 (Cal. 2013) 12 98. The actions of Defendants as alleged herein were carried out with 13 malice, willfulness and/or reckless indifference to the rights of Plaintiff, with full 14 knowledge of their unlawfulness, and with the intent to deprive Plaintiff of rights 15 guaranteed under the law. Plaintiff is entitled to punitive damages for the purpose of 16 deterring such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ 17 conduct described herein was engaged in by officers, directors, and/or managing 18 agents for the Defendant or ratified by officers, directors, and/or managing agents. 19 99. Plaintiff has incurred and continues to incur attorneys' fees and legal 20 expenses in an amount according to proof at the time of trial. 21 TENTH CAUSE OF ACTION 22 (Unlawful Retaliation in Violation of Labor Code 1102.5) 23 (Against All Defendants Except Defendant ROSIE AVUNDZHYAN) 24 100. Plaintiff restates and incorporates by reference each and every one of the 25 above allegations as though they were fully set forth herein. 26 101. California Labor Code section 1102.5 (a) states that an employer shall 27 not make, adopt, or enforce any rule, regulation, or policy preventing an employee 28 from disclosing information to a government or law enforcement agency, to a person COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 18 - 1 with authority over the employee, or to another employee who has authority to 2 investigate, discover, or correct the violation or noncompliance, if the employee has 3 reasonable cause to believe that the information discloses a violation of state or 4 federal statute, or a violation of or noncompliance with a local, state, or federal rule 5 or regulation, regardless of whether disclosing the information is part of the 6 employee's job duties. 7 102. California Labor Code section 1102.5 (b) states that an employer shall 8 not retaliate against an employee for disclosing information to a government or law 9 enforcement agency, to a person with authority over the employee, or to another 10 employee who has authority to investigate, discover, or correct the violation or 11 noncompliance, if the employee has reasonable cause to believe that the information 12 discloses a violation of state or federal statute, or a violation of or noncompliance with 13 a local, state, or federal rule or regulation, regardless of whether disclosing the 14 information is part of the employee's job duties. 15 103. Labor Code section 1102.5(c) prohibits an employer from retaliating 16 against an employee “for refusing to participate in an activity that would result in a 17 violation of state or federal statute, or a violation of or noncompliance with a local, 18 state, or federal rule or regulation. 19 104. Plaintiff engaged in protected conduct as described herein. 20 105. Defendants violated sections 1102.5(a), (b) and/or (c), at a minimum, 21 when it retaliated against Plaintiff through all of its actions as described herein. 22 106. Plaintiff is informed and believes and thereon alleges that the protected 23 conduct was a contributing factor in Defendants' retaliation against Plaintiff. 24 107. As a proximate result of the wrongful conduct of Defendants, and each 25 of them, Plaintiff has suffered and continues to sustain substantial losses in earnings 26 and other employment benefits in an amount according to proof at the time of trial. 27 108. As a proximate result of the wrongful conduct of Defendants, and each 28 of them, Plaintiff has suffered emotional distress, physical manifestations of COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 19 - 1 emotional distress as defined by Internal Revenue Code Section 104(a)(2), and other 2 general damages, in an amount according to proof at the time of trial. 3 The actions of Defendants as alleged herein were carried out with malice, willfulness 4 and/or reckless indifference to the rights of Plaintiff, with full knowledge of their 5 unlawfulness, and with the intent to deprive Plaintiff of rights guaranteed under the 6 law. Plaintiff is entitled to punitive damages for the purpose of deterring such 7 unlawful, malicious, oppressive and/or reckless conduct. Plaintiff has suffered in 8 excess of eighty thousand dollars in damages and is entitled to punitive damages for 9 the purpose of deterring such unlawful, malicious, oppressive and/or reckless 10 conduct, or any combination thereof. 11 109. Defendants’ conduct described herein was engaged in by officers, 12 directors, and/or managing agents for the Defendant or ratified by officers, directors, 13 and/or managing agents. 14 110. Plaintiff has incurred and continues to incur attorneys' fees and legal 15 expenses in an amount according to proof at the time of trial. 16 ELEVENTH CAUSE OF ACTION 17 (Unlawful Discrimination and Retaliation in Violation of Labor Code 6310) 18 (Against All Defendants Except Defendant ROSIE AVUNDZHYAN) 19 111. Plaintiff restates and incorporates by reference each and every one of the 20 above allegations as though they were fully set forth herein. 21 112. California Labor Code § 6310 prohibits employers from discharging, 22 constructively discharging, retaliating, “or in any other manner” discriminating in the 23 terms and conditions of employment against any employee for making any oral or 24 written health or safety complaint, or complaint regarding working conditions to a 25 governmental agency or their employer. Section 6310 also prohibits an employer from 26 retaliating against employees whom they suspect will file a complaint related to 27 workplace safety. 28 113. Plaintiff engaged in protected conduct as described herein. COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 20 - 1 114. Defendants violated Labor Code § 6310 when it retaliated and/or 2 discriminated against Plaintiff through all of its actions as described herein. 3 115. As a proximate result of the wrongful conduct of Defendants, and each of 4 them, Plaintiff has suffered and continues to sustain substantial losses in earnings 5 and other employment benefits in an amount according to proof at the time of trial. 6 116. As a proximate result of the wrongful conduct of Defendants, and each of 7 them, Plaintiff has suffered emotional distress, physical manifestations of emotional 8 distress as defined by Internal Revenue Code Section 104(a)(2), and other general 9 damages, in an amount according to proof at the time of trial. 10 117. The actions of Defendants as alleged herein were carried out with malice, 11 willfulness and/or reckless indifference to the rights of Plaintiff, with full knowledge 12 of their unlawfulness, and with the intent to deprive Plaintiff of rights guaranteed 13 under the law. Plaintiff is entitled to punitive damages for the purpose of deterring 14 such unlawful, malicious, oppressive and/or reckless conduct. Defendants’ conduct 15 described herein was engaged in by officers, directors, and/or managing agents for the 16 Defendant or ratified by officers, directors, and/or managing agents. 17 118. Plaintiff has incurred and continues to incur attorneys' fees and legal 18 expenses in an amount according to proof at the time of trial. 19 TWELFTH CAUSE OF ACTION 20 (Unlawful Retaliation in Violation of Labor Code 6311) 21 (Plaintiff against All Defendants Except Defendant ROSIE AVUNDZHYAN) 22 119. Plaintiff restates and incorporates by reference each and every one of the 23 above allegations as though they were fully set forth herein. 24 120. California Labor Code § 6311 states that no employee shall be laid off or 25 discharged for refusing to perform work in the performance of which this code, 26 including Section 6400, any occupational safety or health standard or any safety order 27 of the division or standards board will be violated, where the violation would create a 28 real and apparent hazard to the employee or his or her fellow employees. Any employee COMPLAINT Toothman v. Ralphs Grocery Company., et al. - 21 - 1 who is laid off or discharged in violation of this section or is otherwise not paid because 2 he or she refused to perform