Preview
148742162
HANSON BRIDGETT LLP
GILBERT J. TSAI, SBN 247305
gtsai@hansonbridgett.com
425 Market Street, 26th Floor
San Francisco, California 94105
Telephone: (415) 777-3200
Facsimile: (415) 541-9366
LAW OFFICES OF LORI B. FELDMAN
LORI B. FELDMAN, SBN 99655
Ibfeldmanlaw@gmail.com
175 North Redwood Drive, Suite 150
San Rafael, CA 94903
Telephone: (415) 492-2120
Facsimile: (415) 492-2019
McNAMARA, NEY, BEATTY, SLATTERY,
BORGES & AMBACHER LLP
LUANNE RUTHERFORD, SBN 153336
Luanne.Rutherford@mcnamaralaw.com
3480 Buskirk Avenue, Suite 250
Pleasant Hill, CA 94523
Telephone: (925) 939-5330
Facsimile: (925) 939-0203
Attorneys for Defendants
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
09/21/2018
Clerk of the Court
BY:EDNALEEN ALEGRE
Deputy Clerk
HOTEL SUNRISE, INC., HOTEL SUNRISE, LLC,
KIRITKUMAR PATEL, SHAKUNTLA PATEL, and KETAN PATEL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
RAMESH SHRESTHA aka RAY
SHRESTHA, an individual,
Plaintiff,
v.
HOTEL SUNRISE, INC., a California
corporation; HOTEL SUNRISE, LLC, a
California limited liability company; KIRIT
KUMAL PATEL aka KIRIT KUMAR
PATEL aka KIRITKUMAR PATEL aka KEN
PATEL, an individual; SHAKUNTALAL
PATEL aka SHAKUNTIA PATEL aka
SHAKUNTLA PATEL aka SKAKUNTA
PATEL aka NINA PATEL, an individual; and
DOES 1-100, inclusive,
Defendants.
CASE NO. CGC-16-553387
DEFENDANTS' RESPONSE TO
PLAINTIFF'S SEPARATE STATEMENT
OF DISPUTED AND UNDISPUTED
MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO
RESPONDENTS' MOTION FOR
SUMMARY ADJUDICATION
Date: September 27, 2018
Time: 9:30 a.m.
Dept.: 501
Action Filed: August 1, 2016
2nd Amd. Complaint Filed: April 23, 2018
Trial Date: February 11, 2019
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
Defendants HOTEL SUNRISE, INC., HOTEL SUNRISE, LLC, KIRITKUMAR PATEL,
SHAKUNTLA PATEL, and KETAN PATEL("Defendants") respond to Plaintiff's Separate
Statement of Disputed and Undisputed Material Facts in Support of Plaintiff's Opposition to
Respondents’ Motion for Summary Adjudication:
FACTS RELATED TO DEFENDANTS' JOINT EMPLOYMENT OF PLAINTIFF
NO. PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDE .
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
1. Defendants admit that Hotel Sunrise, Inc. is one of Defendants do not dispute that,
Plaintiff's employers. Defendant Ken Patel expressly as owners of the Hotel Sunrise,
admitted under oath at this deposition that he and Defendants Ken and Shakuntla
Defendant Meena Patel were also Ray's employers. Patel were authorized to
communicate with Ray on
behalf of the employer Hotel
[Defendants' Separate Statement 2-3; Ken Patel Sunrise.
Deposition ("Ken Patel Depo"), page 208, lines 3-4,
lines 20-25, attached as Exhibit 2 to the Declaration
of Jamie V. Retmier ("Retmier Decl.")]
2. Ramesh Shrestha aka Ray Shrestha ("Ray" or Defendants do not dispute that
"Plaintiff") worked for Defendant Hotel Sunrise, Inc., | Plaintiff worked at and on
Defendant Kiritkumar aka Ken Patel ("Defendant Ken behalf of the Hotel Sunrise
Patel"), Defendant Shakuntla aka Meena Patel during these time periods.
("Defendant Meena Patel"), and Defendant Ketan
Patel, from approximately September 2007 through
September 2011, and again from May 2012 through
August 2, 2016.
[Ray Shrestha Deposition ("Shrestha Depo."), page
142, lines 8-16, 23-24, attached as Exhibit 1 to the
Retmier Decl.; Defendants Separate Statement 7].
3. Defendant Ken Patel initially hired Ray to work as a Defendants do not dispute that
night clerk at Hotel Sunrise (the "Hotel"), and then Ken Patel made the decision to
promoted him to "Resident Manager" approximately 2 _ | retain Plaintiff on behalf of the
weeks later. Hotel Sunrise.
[Shrestha Depo., page 97, lines 19-24, page 100, lines
15-25, page 101, lines1-2., attached as Exhibit 1 to
the Retmier Decl.]
4, Defendant Ken Patel dictated the terms of Ray's Defendants do not dispute that
employment, his pay, and the terms of his tenancy at Ken Patel was authorized to
the Hotel. dictate these terms on behalf of
the Hotel Sunrise.
[Shrestha Depo., page101, lines 3-21, attached as
Exhibit 1 to the Retmier Decl.|
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DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS'
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
5. Ray understood that Defendant Ken Patel, Defendant Defendants do not dispute that
Meena Patel and Defendant Ketan Patel were his Ray communicated with each
employers and supervisors at the Hotel. of the Individual Defendants
about the terms of his
[Shrestha Depo. at page 97, lines 19-24, page 100, Petcasdceneaeet
lines 15-25; page 101, lines 1-2 page 101, lines 3-21; | officer, and non-employee of
page 140, lines 20-25; page 141, lines 1-8; page 171, | the Hotel Sunrise, Plaintiff's
lines 2-14; page 211, lines 11-25, page 212, pages I- | assertion is irrelevant and
4; page 217, lines 6-16; page 218, lines 5-25; page immaterial to the issues in this
224, lines 3-25; page 237, lines 24-25; page 238, lines | action. Evid. Code §§210, 350;
3-5; page 240, lines 12-25; page 241, lines 1-6, 14-22; | /#¢v- County of Sacramento
7 . (1993) 12 Cal. App. 4th 59, 67
page 309, lines 18-24; page 310, lines 12-25; page (evidence that does not relate
316, lines 3-8; page 369, lines 4-12; page 403, lines 7- | (9 a matter in issue is
16; page 404, lines 6-9; page 544, lines 10-14,18-25; | immaterial).
page 545, lines 1, 12-13,18-19; page 557, lines 8-25;
page 558, lines 1-2; page 559, lines 2-3; page 560,
line 25 through 562, line 23; page 564, lines 2-13;
page 592:14-18; page 600:24-25; page 601:1-4,
attached as Exhibit 1 to the Retmier Decl.
Shrestha Declaration, (8, Exhibit 1].
6. Ray reported Hotel business to Defendant Ken Patel Defendants do not dispute that
and Meena Patel, Ray discussed the terms of his
employment, tenancy at the Hotel, and his pay structure
with Defendants Ken and Meena Patel, and Ray
complained to Defendants Ken and Meena Patel about
wage and hour violations and other employment related
issues.
[Shrestha Depo. at page 97, lines 19-24, page 100,
lines 15-25; page 101, lines 1-2 page 101, lines 3-21;
page 140, lines 20-25; page 141, lines 1-8; page 171,
lines 2-14; page 211, lines 11-25, page 212, pages 1-
4; page 217, lines 6-16; page 218, lines 5-25; page
224, lines 3-25; page 237, lines 24-25; page 238, lines
3-5; page 240, lines 12-25; page 241, lines 1-6, 14-22;
page 309, lines 18-24; page 310, lines 12-25; page
316, lines 3-8; page 369, lines 4-12; page 403, lines 7-
16; page 404, lines 6-9; page 544, lines 10-14,18-25;
page 545, lines 1, 12-13,18-19; page 557, lines 8-25;
page 558, lines 1-2; page 559, lines 2-3; page 560,
line 25 through 562, line 23; page 564, lines 2-13;
page 592:14-18; page 600:24-25; page 601:1-4,
attached as Exhibit 1 to the Retmier Decl.].
Ray communicated with Ken
Patel about his employment.
-2-
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS'
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
7. Defendant Ketan Patel was also very involved in the Defendants do not dispute that
Hotel business and maintained ongoing communication | Ray communicated to Ketan
with Ray, via text or e-mail, related to questions and Patel about his employment.
issues about the Hotel. Ray also reported Hotel Given that Ketan Patel was a
business to Defendant Ketan Patel, Ray discussed the non-owner, non-officer, and
7 > “ non-employee of the Hotel
terms of his employment, tenancy at the Hotel, and his | sunrise. Plaintiff’s assertion is
pay structure with Defendant Ketan Patel, and Ray irrelevant and immaterial to
complained to Defendant Ketan Patel about wage and __| the issues in this action. Evid.
hour violations and other employment related issues. Code §§210, 350; Juge v.
County of Sacramento (1993)
[Shrestha Depo., page 140, lines 20-25; page (ean Peed
141,lines 1-8, 4-21; page 171, lines 2-14; page 211, to a matter in issue is
lines 11-25, page 212, pages 1-4; page 217, lines 6- immaterial).
16; page 218, lines 5-25; page 224, lines 3-25; page
309, lines 18-24; page 310, lines 12-25; page 316, Lack of personal knowledge;
lines 3-8; page 369, lines 4-12; page 403, lines 7-16; | calls for speculation. (Evid.
page 544, lines 10-14,18-25; page 545, lines1,12- Code §702(a)).
13,18-19; page 558, lines 15-16; page, 560, lines 25 —
page 562, lines 23; page 564, lines 2-13; page 600,
lines 24-25; page 601, lines 1-4 attached as Exhibit 1
to the Retmier Decl.
Shrestha Declaration, (8, Exhibit 1].
8. Defendants Ken Patel and Meena Patel are the owners | Undisputed.
of Hotel Sunrise, Inc. and the Hotel.
[DSS#2-3].
9. Defendant Ken Patel is the President of Hotel Sunrise, | Undisputed.
Inc. and Defendant Meena Patel is the Secretary of
Hotel Sunrise, Inc.
[Ken Patel Depo., page 23, lines 6-13 attached as
Exhibit 2 to the Retmier Decl.].
10. | There are no other directors or officers of Hotel Undisputed.
Sunrise, Inc. besides Defendants Ken Patel and Meena
Patel.
[Ken Patel Depo., page 22, lines 22-25 attached as
Exhibit 2 to the Retmier Decl.].
11. | Defendant Ken Patel has admitted that he has not Plaintiff's assertion is
looked at the minute book for Hotel Sunrise, Inc. in irrelevant and immaterial to
years, and he does not remember when the last the issues in this action. Evid.
company meeting was, he does not remember if he has | Code §§210, 350; Juge v.
seen any notes of any action by directors or officers of _| County of Sacramento (1993)
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DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS'
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
Hotel Sunrise, Inc., he does not remember when he last | 12 Cal. App. 4th 59, 67
saw any documents relating to any shareholder actions | (evidence that does not relate
for Hotel Sunrise, Inc., and that no one has ever to a matter in issue is
prepared any documents to reflect the actions of any immaterial). Plaintiff failed to
directors, officers, or shareholders of Hotel Sunrise, demonstrate why Ken Patel’s
Inc. inability to remember certain
corporate formalities requires
[Ken Patel Depo., page 22, lines 16-18; page 23, lines | piercing the corporate veil
16-25; page 24, lines 2-11 attached as Exhibit 2 to such that failure to do so
the Retmier Decl.]. would lead to an inequitable
result. Erkenbrecher v. Grant
(1921) 187 Cal. 7, 11; Pearl v.
Shore (1971) 17 Cal.App.3d
608, 616.
12. | Defendant Ken Patel dictated Ray's hours and duties at | Defendants do not dispute that
the hotel. Between May 2012 and April 1, 2016 Ray Ken Patel was authorized to
was to work from 10:00 a.m. until midnight, every day, dictate these terms on behalf of
and he was responsible for essentially each and every the Hotel Sunrise.
issue that could potentially arise with a tenant of the
Hotel, and Hotel business.
[Ken Patel Depo., page165, lines 3-17; page 44, lines
23 — page 48, lines 2, attached as Exhibit 2 to the
Retmier Decl.].
13. | Defendant Ken Patel dictated Ray's salary, and Defendants do not dispute that
Defendant Ketan Patel also discussed Ray's salary with | Ken Patel was authorized to
him at the Hotel. Between May 2012 and April 1, 2016 | dictate these terms on behalf of
Defendant Ken Patel paid Ray a flat salary between the Hotel Sunrise.
approximately $2,800 - $3,500 per month, in cash or
sometimes via check. Defendant Ken Patel determined
this rate of pay.
[Ken Patel Depo., page 167, lines 11-15; page 168,
lines 15-21; page 170, lines 4-6; page 193, lines 12-
14; page 194, lines 4-5, attached as Exhibit 2 to the
Retmier Decl.
Shrestha Declaration, (8, Exhibit 1].
14. | Defendants created an Employment Agreement in Lacks foundation; conclusory.
April 2016 ("the April 2016 Employment Agreement")
in retaliation for Ray cooperating with an OLSE
investigation. Defendants reduced Ray's hours, and
pay, and forced his wife to split his 14-hour shift so
(Evid. Code §§400, 403). Lack
of personal knowledge; calls
for speculation. (Evid. Code
§702(a)).
4.
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO.
PLAINTIFF'S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS'
RESPONSE AND
OBJECTIONS
that he would work 7-8 hours and Ray's wife would
work 7-8 hours per shift to avoid paying them
overtime. In reality, Ray still worked the majority of
the hours, and he and Katherine constantly covered for
each other for duties around the Hotel during the 14-
hour shift they were responsible for. Defendants knew
that the actual work-hours were different from the
Employment Agreement but never objected.
Defendants also started deducting $835.49 per month
from Ray's wages for rent for the Manager's Dwelling,
which they had not done before April 1, 2016.
[Ken Patel Depo., page 171, lines 14-25; page 172
lines 1-5, attached as Exhibit 2 to the Retmier Decl.;
Shrestha Depo., page 217, lines 22-25, page 218,
lines 1-25; page 532, lines 13-25; page 533, lines 1-7;
page 536, lines 11-25; page 537, lines 1-15; page 564,
lines 16-25; page 565, lines 1-11, 23-25; page 566,
lines 1-15, attached as Exhibit 1 to the Retmier
Decl.;
Katherine Amporias Deposition (""Amporias
Depo"), page 276, lines 12-25, attached as Exhibit 3
to the Retmier Decl.].
Irrelevant to and extraneous to
Defendants' UMF Nos. 10-17.
(Evid. Code §§10, 350).
15.
After Ray was presented with and signed the April
2016 Employment Agreement he had a conversation
with Defendant Ketal Patel in which Defendant Ketan
Patel stated to him that "this is what is going to happen,
this is what it is, and this is how it's going to happen
from now on." Ray then asked Defendant Ketan Patel
for a raise, and raised the possibility of Ray moving out
of the Hotel and continuing to work at a higher hourly
rate, but then decided to stay at the Hotel because the
April 2016 Employment Agreement dictated that his
employment was contingent on his residency at the
Hotel.
[Shrestha Depo., page 218, lines 5-25, attached as
Exhibit 1 to the Retmier Decl.].
Irrelevant to and extraneous to
Defendants' UMF Nos. 10-17.
(Evid. Code §§210, 350).
Hearsay. (Evid. Code §1200).
16.
On the afternoon of August 2, 2016 Defendant Ken
Patel was present at the Hotel and received a call from
Defendant Ketan Patel, informing him of this lawsuit
for wage and hour and habitability claims. Less than
Does not dispute Defendants'
UME No. 19, which is
undisputed. Extraneous.
5.
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS'
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
15 minutes later, Defendant Ketan Patel arrived at the
Hotel to help his father confront Ray and his wife about
the lawsuit.
[Ken Patel Depo., page 101, lines 13-19, page 102,
lines 2-3, attached as Exhibit 2 to the Retmier Decl.;
Shrestha Depo., page 246, lines 18-22, attached as
Exhibit 1 to the Retmier Decl.;
Deposition of Ketan Patel, pages 80, lines 3-5, 19-25;
page 81, lines 1-10, attached as Exhibit 4 to the
Retmier Decl.].
17. | After learning of the lawsuit Defendant Ken Patel was | Does not dispute Defendants’
very upset, complained to Ray's wife about the lawsuit, | UMF No. 19, which is
and yelled at Ray "you fucking filed a lawsuit against | undisputed. Hearsay. (Evid.
me?" Code §1200). Irrelevant to and
extraneous to Defendants'
[Shrestha Depo., page 237, lines 24-25; page 238, UME No. 19. (Evid. Code
lines 3-5, attached as Exhibit 1 to the Retmier §§210, 350). Apparently
Decl.]. designed to prejudice the
Court.
18. | Defendant Ken Patel then demanded that Ray withdraw | Does not dispute Defendants'
the lawsuit. When Ray said he would not withdraw the | UMF No. 19, which is
lawsuit and told Defendant Ken Patel to speak to his undisputed. Hearsay. (Evid.
attorneys, Defendant Ken Patel said to Ray, "then in Code §1200). Irrelevant to and
that case, I will have to fire you." extraneous to Defendants'
UME No, 19. (Evid. Code
[Shrestha Depo., page 240, lines 12-21, attached as §§210, 350). Apparently
Exhibit 1 to the Retmier Decl.]. designed to prejudice the
Court.
19. | Ray then asked Defendant Ken Patel if he was being Does not dispute Defendants'
fired and being kicked out of the Hotel, and Defendant | UMF No. 19, which is
Ken Patel responded in the affirmative to both undisputed. Hearsay. (Evid.
questions. Code §1200). Irrelevant to and
extraneous to Defendants’
[Shrestha Depo., page 240, lines 22-25; page 241 UMF No, 19. (Evid. Code
lines 1-6, 14-22, attached as Exhibit 1 to the Retmier | §§210, 350). Apparently
Deel.] designed to prejudice the
Court.
20. | At the time of the termination, Katherine was on duty Does not dispute Defendants'
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Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO.
PLAINTIFF'S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS'
RESPONSE AND
OBJECTIONS
so Ray left the hotel to take a walk and get some fresh
air. Katherine finished her shift and she and Ray
"passed the baton" to the Night Clerk at midnight, and
began moving out that night. The following day, Ray
returned to the Hotel around noon and retrieved more
of his belongings. Ray observed Defendant Ken Patel
at the Hotel, working in place of Ray's at the front
desk, and silently watching Ray as he removed his
belongings.
[Shrestha Depo, page 240, lines 12-25; page 241,
lines 1-6; page 245, lines 18-22, 25; page 246, lines 1-
25; page 247, lines 1-8; page 248, lines 4-8; page 255,
lines 20-24; page 256, lines 20-25; page 258, lines 4-
22; page 260, lines 19-25; page 261, lines 1-12,
attached as Exhibit 1 to the Retmier Decl.;
Katherine Amporias Depo., page 235, lines 20-25;
page 266, lines 22-24; page 289, lines 24-25; page
290, lines 1-25; page 291, line 1, attached as Exhibit
3 to the Retmier Decl.]
UMF No. 20. Irrelevant to and
extraneous to UMF No. 20.
21.
On August 4, 2016 Defendant Ketan Patel sent Ray a
message via Google Hangouts and asked where he
should send his final paycheck.
[Declaration of Ray Shrestha, 98, Exhibit 1].
Irrelevant. (Evid. Code §§210,
350).
FACTS RELATED TO PLAINTIFF'S TENANCY AT THE HOTEL AND THE
UNINHABITABLE CONDITION OF THE MANAGER'S DWELLING
NO.
PLAINTIFF'S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS'
RESPONSE AND
OBJECTIONS
22.
Between May 2012 and April 1, 2016, Ray was
provided the Manager's Dwelling free of charge as part
of his employment with Defendants at the Hotel. After
April 1, 2016, pursuant to the written Employment
Agreement, Defendants deducted $835.49 from Ray's
wages as rent for the dwelling.
[Shrestha Depo., page 102, lines 8-23, page 224, lines
9-10; page 532, lines 13-18; page 540, lines 5-7,
attached as Exhibit 1 to the Retmier Decl.;
Admitted that manager's unit
was provided as an incident of
Plaintiff's employment. The
remaining statement is
irrelevant and not the subject
of Defendants’ motion. (Evid.
Code §§210, 350).
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Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO.
PLAINTIFF'S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS'
RESPONSE AND
OBJECTIONS
Shrestha Decl. 44-5]
23.
The Manager's Dwelling where Ray and his family
resided consisted of only two small bedrooms and a
full bathroom in the back with no kitchen. Ray was
supposed to have exclusive right to the Manager's
Dwelling but Defendant Ken Patel sometimes used the
back bathroom and occasionally showering in that
bathroom. There was also a kitchen/office area with
another bathroom attached to the front office area (the
"Work Area") and accessible from one of the small
bedrooms of the Manager's Dwelling. Ray and his
family had access but not the exclusive control of the
Work Area because Defendants and the Night Manager
had free access to it and used it on a regular basis.
[Shrestha Depo., page 102, lines 8-23, page 224, lines
9-10; page 532, lines 13-18; page 540, lines 5-7,
attached as Exhibit 1 to the Retmier Decl.;
Shrestha Decl. 44, 96].
Misstates testimony:
unsupported by evidence.
Irrelevant to Defendants' UMF
No. 9. (Evid. Code §§210,
350.)
24,
The Manager's Dwelling and Work Area suffered from
numerous building code violations which made it
uninhabitable and unsafe for Ray and his family. The
habitability issues included, without limitation, bars on
windows that prevented our client and his family from
being able to exit in case of an emergency, outdated
and poorly maintained sprinkler system, electrical
wiring issues, mold, and leaks as well as non-
conforming construction and repairs. The habitability
violations are detailed in a report produced by Claudio
Bluer, one of the most experienced and respected
habitability expert in the Bay Area.
[Shrestha Depo., page 351, line 25, page 352, lines 1-
2, 5, 8-10, 15-18; page 353, lines 9-25; page 354, lines
5-25; page 355, lines 1-6, 17-25, attached as Exhibit
1 to the Retmier Decl.;
[Claudio Bluer Deposition ("Bluer Depo."), page 31,
pages 22-25; page 32, lines 4-6; page 34, lines 5-7,
12-14; page 36, lines 7-20; page 37, line 25, page 38,
lines 1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13-
25; page 50, lines 1-4, 19-25, page 51, lines 1-12, 16-
25; page 52, lines 4-6; page 59, lines 13-25, page 60,
Irrelevant to and not the
subject of Defendants' motion.
(Evid. Code §§210, 350).
Conclusory and lacks
foundation. (Evid. Code
§§400, 403). Hearsay. (Evid.
Code § 1200); Lack of personal
knowledge. (Evid. Code
§702(a). Not properly
authenticated. (Evid. Code
§$1400, 1401). Apparently
asserted to prejudice the Court.
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Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS'
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
lines 1-9, 16-17, 20-25; page 61, lines 1-12, 15-16;
page 62, lines 13-21; page 64, lines 1-4, 8-13, page
65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-
25; page 68, lines 1-25; page 69, lines 16-25, page 70,
lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25;
page 75, lines 1-14, 18-22; page 77, lines 1-2, 4-11,
17-18, 21, 23-25; page 78, lines 1-15; page 79, lines
16-25; page 80, lines 1-17, 20, 22-25; page 81, lines
1-16; page 83, lines 4-11, 21-25, and Housing
Inspection Report (attached as Exhibit 3 to the
Bluer Depo.), attached as Exhibit 5 to the Retmier
Decl.]
25. | The Manager's Dwelling and Work Area suffered from Irrelevant to and not the
numerous building code violations, many of which subject of Defendants’ motion.
"constitute an immediate life-threatening hazards, directly | (Evid. Code §§210, 350).
affecting health and safety (habitability)", and Defendants | Conclusory and lacks
had actual or constructive notice of these violations. foundation. (Evid. Code
§§400, 403). Hearsay. (Evid.
[Bluer Depo., page 31, pages 22-25; page 32, lines 4-6; | Code $1200); Lack of personal
page 34, lines 5-7, 12-14; page 36, lines 7-20; page 37, knowledge (Evid. Code
line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, §702(a). Not properly
lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51, lines authenticated. (Evid. Code
1-12, 16-25; page 52, lines 4-6; page 59, lines 13-25, §§1400, 1401). Improper
page 60, lines 1-9, 16-17, 20-25; page 61, lines 1-12, 15- opinion testimony (Evid. Code
16; page 62, lines 13-21; page 64, lines 1-4, 8-13, page §§801, 803) Misstates 7
65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-25; Patt et +
page 68, lines 1-25; page 69, lines 16-25, page 70, lines testimony: unsupported by
1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25; page 75, _ | °Vidence. Apparently asserted
lines 1-14, 18-22; page 77, lines 1-2, 4-11, 17-18, 21, 23- | !© Prejudice the Court.
25; page 78, lines 1-15; page 79, lines 16-25; page 80,
lines 1-17, 20, 22-25; page 81, lines 1-16; page 83, lines
4-11, 21-25, and Housing Inspection Report (attached
as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5
to the Retmier Decl.]
26. | Many of the violations qualify for an "A" rating Irrelevant to and not the
meaning that they "threaten life and safety" and
"require immediate correction" and "B" rated violations
“constitute habitability issues, requiring immediate
correction" and "directly affect habitability on a daily
basis and should be corrected promptly". The "C" rated
violations "refer to maintenance issues that directly
affect the living standards and they should be corrected
in a timely manner". The B and C rated violations are
subject of Defendants' motion.
(Evid. Code §§210,
350).Conclusory and lacks
foundation. (Evid. Code
§§400, 403). Hearsay. (Evid.
Code §1200); Lack of personal
knowledge (Evid. Code
§702(a)). Improper opinion
-9-
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO.
PLAINTIFF'S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS'
RESPONSE AND
OBJECTIONS
too pervasive to list exhaustively but they generally
identify a variety of breach of habitability issues that
made the Manager Dwelling and Work Area unsuitable
for habitation.
[Bluer Depo., page 31, pages 22-25; page 32, lines 4-
6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page
37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25,
page 39, lines 1-6, 13-25; page 50, lines 1-4, 19-25,
page 51, lines 1-12, 16-25; page 52, lines 4-6; page
59, lines 13-25, page 60, lines 1-9, 16-17, 20-25; page
61, lines 1-12, 15-16; page 62, lines 13-21; page 64,
lines 1-4, 8-13, page 65, line 1, page 66, lines 1-25;
page 67, lines 1-4, 11-25; page 68, lines 1-25; page
69, lines 16-25, page 70, lines 1-4, 7-9, 11-21, page
74, lines 2-8, 11, 13-25; page 75, lines 1-14, 18-22;
page 77, lines 1-2, 4-11, 17-18, 21, 23-25; page 78,
lines 1-15; page 79, lines 16-25; page 80, lines 1-17,
20, 22-25; page 81, lines 1-16; page 83, lines 4-11,
21-25, and Housing Inspection Report (attached as
Exhibit 3 to the Bluer Depo.), attached as Exhibit 5
to the Retmier Decl.]
testimony. (Evid. Code §§801,
803). Misstates testimony:
unsupported by evidence.
Apparently asserted to
prejudice the Court.
27,
Defendants were aware of the deplorable condition of
the Manager's Dwelling and the Work Area, because
Defendant Ken Patel was frequently in the front
office/kitchen area and frequented the back bathroom
which caused him to enter and cross the middle and
back rooms of the Manager's Dwelling. Defendant did
nothing about the habitability violations even though
many of them threatened the health and safety of Ray,
and his family.
[Ken Patel Depo, page 39, lines 6-25; page 40, lines
16-17,20-25; page 41, lines 1-18,21-24, attached as
Exhibit 2 to the Retmier Decl.;
Shrestha Depo at page 102, lines 8-23; page 109,
lines 11-19; page 351, lines 25, page 352, lines 1-2, 8-
10, 15-18; page 353, lines 9-25; page 354, lines 5-25;
page 355, lines 1-6, 17-25; page 356, lines 9-16; page
357, lines 5-20; page 358, lines 16-25; page 359, lines
1-4, 8-10, attached as Exhibit 1 to the Retmier Decl.]
Irrelevant to and not the
subject of Defendants’ motion.
(Evid. Code §§210, 350).
Conclusory and lacks
foundation. (Evid. Code
§§400, 403. Lack of personal
knowledge; calls for
speculation (Evid. Code
§702(a)). Misstates testimony:
unsupported by evidence.
Apparently asserted to
prejudice the Court.
-10-
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
FACTS RELATED TO RAY'S EMOTIONAL DISTRESS AS A RESULT OF
DEFENDANTS' OUTRAGEOUS AND CRUEL CONDUCT
NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS'
MATERIAL FACTS AND SUPPORTING RESPONSE AND
EVIDENCE OBJECTIONS
28. | Ray suffered severe emotional distress as the result of | Irrelevant to and extraneous to
Defendants outrageous and cruel treatment and Defendants' UMF Nos. 28-36.
conduct. Ray, his wife, and young two children, had to | (Evid. Code §§210, 350).
live and occupy the uninhabitable and unsafe Lacks foundation, conclusory.
Manager's Dwelling and Work Area. Defendants knew | (Evid. Code §§400, 403).
about these problems but did nothing to fix them. Misstates testimony:
Defendants also engaged in systematic wage theft by unsupported by evidence.
misclassifying Ray and refusing to pay him overtime or | Plaintiff testified to emotional
to provide him with meal and/or rest breaks. distress from termination of
Defendants were also verbally abusive and demeaning | employment relationship, not
to Ray throughout his employment. Defendants from dwelling area.
retaliated against Ray after he cooperated with an
OLSE investigation into Defendants' wage and hour
violations against other employees — including forcing
Ray to remove his dog from the Hotel, disrupting his
family unit and schedule by making his wife split his
14-hour shift, continually reducing their working hours,
and deducting rent from his monthly wages.
[Shrestha Depo at 217:22-25, 218:1-25, 398:18-25;
399:1-25; 400:1-25; 401:1-3,21-25; 402:1-18; 403:7-
25; 404:1-15, 21-25; 405:1-2].
29. | Defendants then verbally abused and wrongfully fired | Irrelevant to and extraneous to
Ray, a legally blind man, and his wife from long-term | Defendants' UMF Nos. 28-36.
employment, and wrongfully evicted them and their (Evid. Code §§210, 350).
two young children. Lacks foundation; conclusory.
(Evid. Code §§400, 403).
[Shrestha Depo., page 237, lines 24-25; page 238, Misstates testimony:
lines 3-5; page 240, lines 12-21; 240, lines 22-25; unsupported by evidence.
page 241 lines 1-6, 14-22, attached as Exhibit 1 to Apparently asserted to
the Retmier Decl.; prejudice the Court.
Shrestha Decl. {72.]
30. | This occurred within an hour of Defendants learning Irrelevant and extraneous to
that Ray had filed his lawsuit, aimed at righting the
wage and hour and habitability violations, and the
wrongful termination eviction were in retaliation for
Ray filing the complaint against the Defendants. This
conduct persisted over a long period of time.
Defendants' UMF Nos. 28-36.
(Evid. Code §§210, 350).
Lacks foundation; conclusory.
(Evid. Code §§400, 403).
Misstates testimony;
unsupported by evidence.
-ll-
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162
NO.
PLAINTIFF'S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS'
RESPONSE AND
OBJECTIONS
[Ken Patel Depo., page 101, lines 13-19, page 102,
lines 2-3, attached as Exhibit 2 to the Retmier Decl.;
Deposition of Ketan Patel, pages 80, lines 3-5, 19-25;
page 81, lines 1-10, attached as Exhibit 4 to the
Retmier Decl.;
Shrestha Depo., page 237, lines 24-25; page 238,
lines 3-5, page 240, lines 12-21, 22-25; page 241 lines
1-6, 14-22, attached as Exhibit 1 to the Retmier
Decl.]
Apparently asserted to
prejudice the Court.
31.
It can be inferred that such outrageous conduct by
Defendants over a prolonged period of time would
cause a reasonable employee sever distress especially
given the employee's dependence on the employer for
wages and housing. Ray's symptoms of emotional
distress include, but are not limited to, feeling shocked,
humiliated, frustrated, and depressed, feeling
mistreated in the way that he was paid, feeling like he
was treated like a slave, ignored as to his several
requests for necessary repairs to his dwelling at the
Hotel, ignored as to his several requests for adequate
and lawful pay, sad and uncertain about whether he
would be able to make enough money to pay his bills
and support his family, sleeplessness, worry, anxiety
and fear.
[Shrestha Depo., page 398, lines 18-25; page 399,
lines 1-25; page 400, lines 1-25; page 401, lines 1-3,
21-25; page 402, lines 1-18; page 403, lines 7-25;
page 404, lines 1-15, 21-25; page 405, lines 1-2,
attached as Exhibit 1 to the Retmier Decl.]
Lacks foundation; conclusory.
(Evid. Code §§400, 403). Lack
of personal knowledge; calls
for speculation (Evid. Code
§702(a)).
32.
Defendants conduct was both intentional and negligent,
and was a substantial factor in causing Ray's severe
emotional distress.
[Shrestha Depo., page 348, lines 5-7; page 532, lines
13-25; page 533, lines 1-7; page 536, lines 11-25;
page 537, lines 1-15; page 564, lines16-25; page 565,
lines 1-11, 23-25; page 566, lines 1-15, attached as
Exhibit 1 to the Retmier Decl.;
Amporias Depo., page 276, lines 12-25, attached as
Exhibit 3 to the Retmier Decl.]
Lacks foundation; conclusory.
(Evid. Code §§400, 403). Lack
of personal knowledge; calls
for speculation (Evid. Code
§702(a)).
-12-
Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATIONDATED: September 21, 2018 LAW OFFICES OF LORI B. FELDMAN
4 By: /s/ Lori B. Feldman
Lori B. Feldman
5 Attorneys for Defendants HOTEL SUNRISE,
INC., HOTEL SUNRISE, LLC, KIRITKUMAR
PATEL, SHAKUNTLA PATEL, and KETAN
PATEL
-13- Case No. CGC-16-553387
DEFTS' RESPONSE TO PLTV’S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN
148742162 SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION
Preview
148742162 HANSON BRIDGETT LLP GILBERT J. TSAI, SBN 247305 gtsai@hansonbridgett.com 425 Market Street, 26th Floor San Francisco, California 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 LAW OFFICES OF LORI B. FELDMAN LORI B. FELDMAN, SBN 99655 Ibfeldmanlaw@gmail.com 175 North Redwood Drive, Suite 150 San Rafael, CA 94903 Telephone: (415) 492-2120 Facsimile: (415) 492-2019 McNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER LLP LUANNE RUTHERFORD, SBN 153336 Luanne.Rutherford@mcnamaralaw.com 3480 Buskirk Avenue, Suite 250 Pleasant Hill, CA 94523 Telephone: (925) 939-5330 Facsimile: (925) 939-0203 Attorneys for Defendants ELECTRONICALLY FILED Superior Court of California, County of San Francisco 09/21/2018 Clerk of the Court BY:EDNALEEN ALEGRE Deputy Clerk HOTEL SUNRISE, INC., HOTEL SUNRISE, LLC, KIRITKUMAR PATEL, SHAKUNTLA PATEL, and KETAN PATEL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RAMESH SHRESTHA aka RAY SHRESTHA, an individual, Plaintiff, v. HOTEL SUNRISE, INC., a California corporation; HOTEL SUNRISE, LLC, a California limited liability company; KIRIT KUMAL PATEL aka KIRIT KUMAR PATEL aka KIRITKUMAR PATEL aka KEN PATEL, an individual; SHAKUNTALAL PATEL aka SHAKUNTIA PATEL aka SHAKUNTLA PATEL aka SKAKUNTA PATEL aka NINA PATEL, an individual; and DOES 1-100, inclusive, Defendants. CASE NO. CGC-16-553387 DEFENDANTS' RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION Date: September 27, 2018 Time: 9:30 a.m. Dept.: 501 Action Filed: August 1, 2016 2nd Amd. Complaint Filed: April 23, 2018 Trial Date: February 11, 2019 Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 Defendants HOTEL SUNRISE, INC., HOTEL SUNRISE, LLC, KIRITKUMAR PATEL, SHAKUNTLA PATEL, and KETAN PATEL("Defendants") respond to Plaintiff's Separate Statement of Disputed and Undisputed Material Facts in Support of Plaintiff's Opposition to Respondents’ Motion for Summary Adjudication: FACTS RELATED TO DEFENDANTS' JOINT EMPLOYMENT OF PLAINTIFF NO. PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDE . MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS 1. Defendants admit that Hotel Sunrise, Inc. is one of Defendants do not dispute that, Plaintiff's employers. Defendant Ken Patel expressly as owners of the Hotel Sunrise, admitted under oath at this deposition that he and Defendants Ken and Shakuntla Defendant Meena Patel were also Ray's employers. Patel were authorized to communicate with Ray on behalf of the employer Hotel [Defendants' Separate Statement 2-3; Ken Patel Sunrise. Deposition ("Ken Patel Depo"), page 208, lines 3-4, lines 20-25, attached as Exhibit 2 to the Declaration of Jamie V. Retmier ("Retmier Decl.")] 2. Ramesh Shrestha aka Ray Shrestha ("Ray" or Defendants do not dispute that "Plaintiff") worked for Defendant Hotel Sunrise, Inc., | Plaintiff worked at and on Defendant Kiritkumar aka Ken Patel ("Defendant Ken behalf of the Hotel Sunrise Patel"), Defendant Shakuntla aka Meena Patel during these time periods. ("Defendant Meena Patel"), and Defendant Ketan Patel, from approximately September 2007 through September 2011, and again from May 2012 through August 2, 2016. [Ray Shrestha Deposition ("Shrestha Depo."), page 142, lines 8-16, 23-24, attached as Exhibit 1 to the Retmier Decl.; Defendants Separate Statement 7]. 3. Defendant Ken Patel initially hired Ray to work as a Defendants do not dispute that night clerk at Hotel Sunrise (the "Hotel"), and then Ken Patel made the decision to promoted him to "Resident Manager" approximately 2 _ | retain Plaintiff on behalf of the weeks later. Hotel Sunrise. [Shrestha Depo., page 97, lines 19-24, page 100, lines 15-25, page 101, lines1-2., attached as Exhibit 1 to the Retmier Decl.] 4, Defendant Ken Patel dictated the terms of Ray's Defendants do not dispute that employment, his pay, and the terms of his tenancy at Ken Patel was authorized to the Hotel. dictate these terms on behalf of the Hotel Sunrise. [Shrestha Depo., page101, lines 3-21, attached as Exhibit 1 to the Retmier Decl.| -l- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS' MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS 5. Ray understood that Defendant Ken Patel, Defendant Defendants do not dispute that Meena Patel and Defendant Ketan Patel were his Ray communicated with each employers and supervisors at the Hotel. of the Individual Defendants about the terms of his [Shrestha Depo. at page 97, lines 19-24, page 100, Petcasdceneaeet lines 15-25; page 101, lines 1-2 page 101, lines 3-21; | officer, and non-employee of page 140, lines 20-25; page 141, lines 1-8; page 171, | the Hotel Sunrise, Plaintiff's lines 2-14; page 211, lines 11-25, page 212, pages I- | assertion is irrelevant and 4; page 217, lines 6-16; page 218, lines 5-25; page immaterial to the issues in this 224, lines 3-25; page 237, lines 24-25; page 238, lines | action. Evid. Code §§210, 350; 3-5; page 240, lines 12-25; page 241, lines 1-6, 14-22; | /#¢v- County of Sacramento 7 . (1993) 12 Cal. App. 4th 59, 67 page 309, lines 18-24; page 310, lines 12-25; page (evidence that does not relate 316, lines 3-8; page 369, lines 4-12; page 403, lines 7- | (9 a matter in issue is 16; page 404, lines 6-9; page 544, lines 10-14,18-25; | immaterial). page 545, lines 1, 12-13,18-19; page 557, lines 8-25; page 558, lines 1-2; page 559, lines 2-3; page 560, line 25 through 562, line 23; page 564, lines 2-13; page 592:14-18; page 600:24-25; page 601:1-4, attached as Exhibit 1 to the Retmier Decl. Shrestha Declaration, (8, Exhibit 1]. 6. Ray reported Hotel business to Defendant Ken Patel Defendants do not dispute that and Meena Patel, Ray discussed the terms of his employment, tenancy at the Hotel, and his pay structure with Defendants Ken and Meena Patel, and Ray complained to Defendants Ken and Meena Patel about wage and hour violations and other employment related issues. [Shrestha Depo. at page 97, lines 19-24, page 100, lines 15-25; page 101, lines 1-2 page 101, lines 3-21; page 140, lines 20-25; page 141, lines 1-8; page 171, lines 2-14; page 211, lines 11-25, page 212, pages 1- 4; page 217, lines 6-16; page 218, lines 5-25; page 224, lines 3-25; page 237, lines 24-25; page 238, lines 3-5; page 240, lines 12-25; page 241, lines 1-6, 14-22; page 309, lines 18-24; page 310, lines 12-25; page 316, lines 3-8; page 369, lines 4-12; page 403, lines 7- 16; page 404, lines 6-9; page 544, lines 10-14,18-25; page 545, lines 1, 12-13,18-19; page 557, lines 8-25; page 558, lines 1-2; page 559, lines 2-3; page 560, line 25 through 562, line 23; page 564, lines 2-13; page 592:14-18; page 600:24-25; page 601:1-4, attached as Exhibit 1 to the Retmier Decl.]. Ray communicated with Ken Patel about his employment. -2- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS' MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS 7. Defendant Ketan Patel was also very involved in the Defendants do not dispute that Hotel business and maintained ongoing communication | Ray communicated to Ketan with Ray, via text or e-mail, related to questions and Patel about his employment. issues about the Hotel. Ray also reported Hotel Given that Ketan Patel was a business to Defendant Ketan Patel, Ray discussed the non-owner, non-officer, and 7 > “ non-employee of the Hotel terms of his employment, tenancy at the Hotel, and his | sunrise. Plaintiff’s assertion is pay structure with Defendant Ketan Patel, and Ray irrelevant and immaterial to complained to Defendant Ketan Patel about wage and __| the issues in this action. Evid. hour violations and other employment related issues. Code §§210, 350; Juge v. County of Sacramento (1993) [Shrestha Depo., page 140, lines 20-25; page (ean Peed 141,lines 1-8, 4-21; page 171, lines 2-14; page 211, to a matter in issue is lines 11-25, page 212, pages 1-4; page 217, lines 6- immaterial). 16; page 218, lines 5-25; page 224, lines 3-25; page 309, lines 18-24; page 310, lines 12-25; page 316, Lack of personal knowledge; lines 3-8; page 369, lines 4-12; page 403, lines 7-16; | calls for speculation. (Evid. page 544, lines 10-14,18-25; page 545, lines1,12- Code §702(a)). 13,18-19; page 558, lines 15-16; page, 560, lines 25 — page 562, lines 23; page 564, lines 2-13; page 600, lines 24-25; page 601, lines 1-4 attached as Exhibit 1 to the Retmier Decl. Shrestha Declaration, (8, Exhibit 1]. 8. Defendants Ken Patel and Meena Patel are the owners | Undisputed. of Hotel Sunrise, Inc. and the Hotel. [DSS#2-3]. 9. Defendant Ken Patel is the President of Hotel Sunrise, | Undisputed. Inc. and Defendant Meena Patel is the Secretary of Hotel Sunrise, Inc. [Ken Patel Depo., page 23, lines 6-13 attached as Exhibit 2 to the Retmier Decl.]. 10. | There are no other directors or officers of Hotel Undisputed. Sunrise, Inc. besides Defendants Ken Patel and Meena Patel. [Ken Patel Depo., page 22, lines 22-25 attached as Exhibit 2 to the Retmier Decl.]. 11. | Defendant Ken Patel has admitted that he has not Plaintiff's assertion is looked at the minute book for Hotel Sunrise, Inc. in irrelevant and immaterial to years, and he does not remember when the last the issues in this action. Evid. company meeting was, he does not remember if he has | Code §§210, 350; Juge v. seen any notes of any action by directors or officers of _| County of Sacramento (1993) -3- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS' MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS Hotel Sunrise, Inc., he does not remember when he last | 12 Cal. App. 4th 59, 67 saw any documents relating to any shareholder actions | (evidence that does not relate for Hotel Sunrise, Inc., and that no one has ever to a matter in issue is prepared any documents to reflect the actions of any immaterial). Plaintiff failed to directors, officers, or shareholders of Hotel Sunrise, demonstrate why Ken Patel’s Inc. inability to remember certain corporate formalities requires [Ken Patel Depo., page 22, lines 16-18; page 23, lines | piercing the corporate veil 16-25; page 24, lines 2-11 attached as Exhibit 2 to such that failure to do so the Retmier Decl.]. would lead to an inequitable result. Erkenbrecher v. Grant (1921) 187 Cal. 7, 11; Pearl v. Shore (1971) 17 Cal.App.3d 608, 616. 12. | Defendant Ken Patel dictated Ray's hours and duties at | Defendants do not dispute that the hotel. Between May 2012 and April 1, 2016 Ray Ken Patel was authorized to was to work from 10:00 a.m. until midnight, every day, dictate these terms on behalf of and he was responsible for essentially each and every the Hotel Sunrise. issue that could potentially arise with a tenant of the Hotel, and Hotel business. [Ken Patel Depo., page165, lines 3-17; page 44, lines 23 — page 48, lines 2, attached as Exhibit 2 to the Retmier Decl.]. 13. | Defendant Ken Patel dictated Ray's salary, and Defendants do not dispute that Defendant Ketan Patel also discussed Ray's salary with | Ken Patel was authorized to him at the Hotel. Between May 2012 and April 1, 2016 | dictate these terms on behalf of Defendant Ken Patel paid Ray a flat salary between the Hotel Sunrise. approximately $2,800 - $3,500 per month, in cash or sometimes via check. Defendant Ken Patel determined this rate of pay. [Ken Patel Depo., page 167, lines 11-15; page 168, lines 15-21; page 170, lines 4-6; page 193, lines 12- 14; page 194, lines 4-5, attached as Exhibit 2 to the Retmier Decl. Shrestha Declaration, (8, Exhibit 1]. 14. | Defendants created an Employment Agreement in Lacks foundation; conclusory. April 2016 ("the April 2016 Employment Agreement") in retaliation for Ray cooperating with an OLSE investigation. Defendants reduced Ray's hours, and pay, and forced his wife to split his 14-hour shift so (Evid. Code §§400, 403). Lack of personal knowledge; calls for speculation. (Evid. Code §702(a)). 4. Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. PLAINTIFF'S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS' RESPONSE AND OBJECTIONS that he would work 7-8 hours and Ray's wife would work 7-8 hours per shift to avoid paying them overtime. In reality, Ray still worked the majority of the hours, and he and Katherine constantly covered for each other for duties around the Hotel during the 14- hour shift they were responsible for. Defendants knew that the actual work-hours were different from the Employment Agreement but never objected. Defendants also started deducting $835.49 per month from Ray's wages for rent for the Manager's Dwelling, which they had not done before April 1, 2016. [Ken Patel Depo., page 171, lines 14-25; page 172 lines 1-5, attached as Exhibit 2 to the Retmier Decl.; Shrestha Depo., page 217, lines 22-25, page 218, lines 1-25; page 532, lines 13-25; page 533, lines 1-7; page 536, lines 11-25; page 537, lines 1-15; page 564, lines 16-25; page 565, lines 1-11, 23-25; page 566, lines 1-15, attached as Exhibit 1 to the Retmier Decl.; Katherine Amporias Deposition (""Amporias Depo"), page 276, lines 12-25, attached as Exhibit 3 to the Retmier Decl.]. Irrelevant to and extraneous to Defendants' UMF Nos. 10-17. (Evid. Code §§10, 350). 15. After Ray was presented with and signed the April 2016 Employment Agreement he had a conversation with Defendant Ketal Patel in which Defendant Ketan Patel stated to him that "this is what is going to happen, this is what it is, and this is how it's going to happen from now on." Ray then asked Defendant Ketan Patel for a raise, and raised the possibility of Ray moving out of the Hotel and continuing to work at a higher hourly rate, but then decided to stay at the Hotel because the April 2016 Employment Agreement dictated that his employment was contingent on his residency at the Hotel. [Shrestha Depo., page 218, lines 5-25, attached as Exhibit 1 to the Retmier Decl.]. Irrelevant to and extraneous to Defendants' UMF Nos. 10-17. (Evid. Code §§210, 350). Hearsay. (Evid. Code §1200). 16. On the afternoon of August 2, 2016 Defendant Ken Patel was present at the Hotel and received a call from Defendant Ketan Patel, informing him of this lawsuit for wage and hour and habitability claims. Less than Does not dispute Defendants' UME No. 19, which is undisputed. Extraneous. 5. Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS' MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS 15 minutes later, Defendant Ketan Patel arrived at the Hotel to help his father confront Ray and his wife about the lawsuit. [Ken Patel Depo., page 101, lines 13-19, page 102, lines 2-3, attached as Exhibit 2 to the Retmier Decl.; Shrestha Depo., page 246, lines 18-22, attached as Exhibit 1 to the Retmier Decl.; Deposition of Ketan Patel, pages 80, lines 3-5, 19-25; page 81, lines 1-10, attached as Exhibit 4 to the Retmier Decl.]. 17. | After learning of the lawsuit Defendant Ken Patel was | Does not dispute Defendants’ very upset, complained to Ray's wife about the lawsuit, | UMF No. 19, which is and yelled at Ray "you fucking filed a lawsuit against | undisputed. Hearsay. (Evid. me?" Code §1200). Irrelevant to and extraneous to Defendants' [Shrestha Depo., page 237, lines 24-25; page 238, UME No. 19. (Evid. Code lines 3-5, attached as Exhibit 1 to the Retmier §§210, 350). Apparently Decl.]. designed to prejudice the Court. 18. | Defendant Ken Patel then demanded that Ray withdraw | Does not dispute Defendants' the lawsuit. When Ray said he would not withdraw the | UMF No. 19, which is lawsuit and told Defendant Ken Patel to speak to his undisputed. Hearsay. (Evid. attorneys, Defendant Ken Patel said to Ray, "then in Code §1200). Irrelevant to and that case, I will have to fire you." extraneous to Defendants' UME No, 19. (Evid. Code [Shrestha Depo., page 240, lines 12-21, attached as §§210, 350). Apparently Exhibit 1 to the Retmier Decl.]. designed to prejudice the Court. 19. | Ray then asked Defendant Ken Patel if he was being Does not dispute Defendants' fired and being kicked out of the Hotel, and Defendant | UMF No. 19, which is Ken Patel responded in the affirmative to both undisputed. Hearsay. (Evid. questions. Code §1200). Irrelevant to and extraneous to Defendants’ [Shrestha Depo., page 240, lines 22-25; page 241 UMF No, 19. (Evid. Code lines 1-6, 14-22, attached as Exhibit 1 to the Retmier | §§210, 350). Apparently Deel.] designed to prejudice the Court. 20. | At the time of the termination, Katherine was on duty Does not dispute Defendants' -6- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. PLAINTIFF'S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS' RESPONSE AND OBJECTIONS so Ray left the hotel to take a walk and get some fresh air. Katherine finished her shift and she and Ray "passed the baton" to the Night Clerk at midnight, and began moving out that night. The following day, Ray returned to the Hotel around noon and retrieved more of his belongings. Ray observed Defendant Ken Patel at the Hotel, working in place of Ray's at the front desk, and silently watching Ray as he removed his belongings. [Shrestha Depo, page 240, lines 12-25; page 241, lines 1-6; page 245, lines 18-22, 25; page 246, lines 1- 25; page 247, lines 1-8; page 248, lines 4-8; page 255, lines 20-24; page 256, lines 20-25; page 258, lines 4- 22; page 260, lines 19-25; page 261, lines 1-12, attached as Exhibit 1 to the Retmier Decl.; Katherine Amporias Depo., page 235, lines 20-25; page 266, lines 22-24; page 289, lines 24-25; page 290, lines 1-25; page 291, line 1, attached as Exhibit 3 to the Retmier Decl.] UMF No. 20. Irrelevant to and extraneous to UMF No. 20. 21. On August 4, 2016 Defendant Ketan Patel sent Ray a message via Google Hangouts and asked where he should send his final paycheck. [Declaration of Ray Shrestha, 98, Exhibit 1]. Irrelevant. (Evid. Code §§210, 350). FACTS RELATED TO PLAINTIFF'S TENANCY AT THE HOTEL AND THE UNINHABITABLE CONDITION OF THE MANAGER'S DWELLING NO. PLAINTIFF'S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS' RESPONSE AND OBJECTIONS 22. Between May 2012 and April 1, 2016, Ray was provided the Manager's Dwelling free of charge as part of his employment with Defendants at the Hotel. After April 1, 2016, pursuant to the written Employment Agreement, Defendants deducted $835.49 from Ray's wages as rent for the dwelling. [Shrestha Depo., page 102, lines 8-23, page 224, lines 9-10; page 532, lines 13-18; page 540, lines 5-7, attached as Exhibit 1 to the Retmier Decl.; Admitted that manager's unit was provided as an incident of Plaintiff's employment. The remaining statement is irrelevant and not the subject of Defendants’ motion. (Evid. Code §§210, 350). -7- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. PLAINTIFF'S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS' RESPONSE AND OBJECTIONS Shrestha Decl. 44-5] 23. The Manager's Dwelling where Ray and his family resided consisted of only two small bedrooms and a full bathroom in the back with no kitchen. Ray was supposed to have exclusive right to the Manager's Dwelling but Defendant Ken Patel sometimes used the back bathroom and occasionally showering in that bathroom. There was also a kitchen/office area with another bathroom attached to the front office area (the "Work Area") and accessible from one of the small bedrooms of the Manager's Dwelling. Ray and his family had access but not the exclusive control of the Work Area because Defendants and the Night Manager had free access to it and used it on a regular basis. [Shrestha Depo., page 102, lines 8-23, page 224, lines 9-10; page 532, lines 13-18; page 540, lines 5-7, attached as Exhibit 1 to the Retmier Decl.; Shrestha Decl. 44, 96]. Misstates testimony: unsupported by evidence. Irrelevant to Defendants' UMF No. 9. (Evid. Code §§210, 350.) 24, The Manager's Dwelling and Work Area suffered from numerous building code violations which made it uninhabitable and unsafe for Ray and his family. The habitability issues included, without limitation, bars on windows that prevented our client and his family from being able to exit in case of an emergency, outdated and poorly maintained sprinkler system, electrical wiring issues, mold, and leaks as well as non- conforming construction and repairs. The habitability violations are detailed in a report produced by Claudio Bluer, one of the most experienced and respected habitability expert in the Bay Area. [Shrestha Depo., page 351, line 25, page 352, lines 1- 2, 5, 8-10, 15-18; page 353, lines 9-25; page 354, lines 5-25; page 355, lines 1-6, 17-25, attached as Exhibit 1 to the Retmier Decl.; [Claudio Bluer Deposition ("Bluer Depo."), page 31, pages 22-25; page 32, lines 4-6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page 37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13- 25; page 50, lines 1-4, 19-25, page 51, lines 1-12, 16- 25; page 52, lines 4-6; page 59, lines 13-25, page 60, Irrelevant to and not the subject of Defendants' motion. (Evid. Code §§210, 350). Conclusory and lacks foundation. (Evid. Code §§400, 403). Hearsay. (Evid. Code § 1200); Lack of personal knowledge. (Evid. Code §702(a). Not properly authenticated. (Evid. Code §$1400, 1401). Apparently asserted to prejudice the Court. -8- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS' MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS lines 1-9, 16-17, 20-25; page 61, lines 1-12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8-13, page 65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11- 25; page 68, lines 1-25; page 69, lines 16-25, page 70, lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4-11, 17-18, 21, 23-25; page 78, lines 1-15; page 79, lines 16-25; page 80, lines 1-17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11, 21-25, and Housing Inspection Report (attached as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5 to the Retmier Decl.] 25. | The Manager's Dwelling and Work Area suffered from Irrelevant to and not the numerous building code violations, many of which subject of Defendants’ motion. "constitute an immediate life-threatening hazards, directly | (Evid. Code §§210, 350). affecting health and safety (habitability)", and Defendants | Conclusory and lacks had actual or constructive notice of these violations. foundation. (Evid. Code §§400, 403). Hearsay. (Evid. [Bluer Depo., page 31, pages 22-25; page 32, lines 4-6; | Code $1200); Lack of personal page 34, lines 5-7, 12-14; page 36, lines 7-20; page 37, knowledge (Evid. Code line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, §702(a). Not properly lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51, lines authenticated. (Evid. Code 1-12, 16-25; page 52, lines 4-6; page 59, lines 13-25, §§1400, 1401). Improper page 60, lines 1-9, 16-17, 20-25; page 61, lines 1-12, 15- opinion testimony (Evid. Code 16; page 62, lines 13-21; page 64, lines 1-4, 8-13, page §§801, 803) Misstates 7 65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-25; Patt et + page 68, lines 1-25; page 69, lines 16-25, page 70, lines testimony: unsupported by 1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25; page 75, _ | °Vidence. Apparently asserted lines 1-14, 18-22; page 77, lines 1-2, 4-11, 17-18, 21, 23- | !© Prejudice the Court. 25; page 78, lines 1-15; page 79, lines 16-25; page 80, lines 1-17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11, 21-25, and Housing Inspection Report (attached as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5 to the Retmier Decl.] 26. | Many of the violations qualify for an "A" rating Irrelevant to and not the meaning that they "threaten life and safety" and "require immediate correction" and "B" rated violations “constitute habitability issues, requiring immediate correction" and "directly affect habitability on a daily basis and should be corrected promptly". The "C" rated violations "refer to maintenance issues that directly affect the living standards and they should be corrected in a timely manner". The B and C rated violations are subject of Defendants' motion. (Evid. Code §§210, 350).Conclusory and lacks foundation. (Evid. Code §§400, 403). Hearsay. (Evid. Code §1200); Lack of personal knowledge (Evid. Code §702(a)). Improper opinion -9- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. PLAINTIFF'S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS' RESPONSE AND OBJECTIONS too pervasive to list exhaustively but they generally identify a variety of breach of habitability issues that made the Manager Dwelling and Work Area unsuitable for habitation. [Bluer Depo., page 31, pages 22-25; page 32, lines 4- 6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page 37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51, lines 1-12, 16-25; page 52, lines 4-6; page 59, lines 13-25, page 60, lines 1-9, 16-17, 20-25; page 61, lines 1-12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8-13, page 65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-25; page 68, lines 1-25; page 69, lines 16-25, page 70, lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4-11, 17-18, 21, 23-25; page 78, lines 1-15; page 79, lines 16-25; page 80, lines 1-17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11, 21-25, and Housing Inspection Report (attached as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5 to the Retmier Decl.] testimony. (Evid. Code §§801, 803). Misstates testimony: unsupported by evidence. Apparently asserted to prejudice the Court. 27, Defendants were aware of the deplorable condition of the Manager's Dwelling and the Work Area, because Defendant Ken Patel was frequently in the front office/kitchen area and frequented the back bathroom which caused him to enter and cross the middle and back rooms of the Manager's Dwelling. Defendant did nothing about the habitability violations even though many of them threatened the health and safety of Ray, and his family. [Ken Patel Depo, page 39, lines 6-25; page 40, lines 16-17,20-25; page 41, lines 1-18,21-24, attached as Exhibit 2 to the Retmier Decl.; Shrestha Depo at page 102, lines 8-23; page 109, lines 11-19; page 351, lines 25, page 352, lines 1-2, 8- 10, 15-18; page 353, lines 9-25; page 354, lines 5-25; page 355, lines 1-6, 17-25; page 356, lines 9-16; page 357, lines 5-20; page 358, lines 16-25; page 359, lines 1-4, 8-10, attached as Exhibit 1 to the Retmier Decl.] Irrelevant to and not the subject of Defendants’ motion. (Evid. Code §§210, 350). Conclusory and lacks foundation. (Evid. Code §§400, 403. Lack of personal knowledge; calls for speculation (Evid. Code §702(a)). Misstates testimony: unsupported by evidence. Apparently asserted to prejudice the Court. -10- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 FACTS RELATED TO RAY'S EMOTIONAL DISTRESS AS A RESULT OF DEFENDANTS' OUTRAGEOUS AND CRUEL CONDUCT NO. | PLAINTIFF'S DISPUTED AND UNDISPUTED RESPONDENTS' MATERIAL FACTS AND SUPPORTING RESPONSE AND EVIDENCE OBJECTIONS 28. | Ray suffered severe emotional distress as the result of | Irrelevant to and extraneous to Defendants outrageous and cruel treatment and Defendants' UMF Nos. 28-36. conduct. Ray, his wife, and young two children, had to | (Evid. Code §§210, 350). live and occupy the uninhabitable and unsafe Lacks foundation, conclusory. Manager's Dwelling and Work Area. Defendants knew | (Evid. Code §§400, 403). about these problems but did nothing to fix them. Misstates testimony: Defendants also engaged in systematic wage theft by unsupported by evidence. misclassifying Ray and refusing to pay him overtime or | Plaintiff testified to emotional to provide him with meal and/or rest breaks. distress from termination of Defendants were also verbally abusive and demeaning | employment relationship, not to Ray throughout his employment. Defendants from dwelling area. retaliated against Ray after he cooperated with an OLSE investigation into Defendants' wage and hour violations against other employees — including forcing Ray to remove his dog from the Hotel, disrupting his family unit and schedule by making his wife split his 14-hour shift, continually reducing their working hours, and deducting rent from his monthly wages. [Shrestha Depo at 217:22-25, 218:1-25, 398:18-25; 399:1-25; 400:1-25; 401:1-3,21-25; 402:1-18; 403:7- 25; 404:1-15, 21-25; 405:1-2]. 29. | Defendants then verbally abused and wrongfully fired | Irrelevant to and extraneous to Ray, a legally blind man, and his wife from long-term | Defendants' UMF Nos. 28-36. employment, and wrongfully evicted them and their (Evid. Code §§210, 350). two young children. Lacks foundation; conclusory. (Evid. Code §§400, 403). [Shrestha Depo., page 237, lines 24-25; page 238, Misstates testimony: lines 3-5; page 240, lines 12-21; 240, lines 22-25; unsupported by evidence. page 241 lines 1-6, 14-22, attached as Exhibit 1 to Apparently asserted to the Retmier Decl.; prejudice the Court. Shrestha Decl. {72.] 30. | This occurred within an hour of Defendants learning Irrelevant and extraneous to that Ray had filed his lawsuit, aimed at righting the wage and hour and habitability violations, and the wrongful termination eviction were in retaliation for Ray filing the complaint against the Defendants. This conduct persisted over a long period of time. Defendants' UMF Nos. 28-36. (Evid. Code §§210, 350). Lacks foundation; conclusory. (Evid. Code §§400, 403). Misstates testimony; unsupported by evidence. -ll- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION148742162 NO. PLAINTIFF'S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS' RESPONSE AND OBJECTIONS [Ken Patel Depo., page 101, lines 13-19, page 102, lines 2-3, attached as Exhibit 2 to the Retmier Decl.; Deposition of Ketan Patel, pages 80, lines 3-5, 19-25; page 81, lines 1-10, attached as Exhibit 4 to the Retmier Decl.; Shrestha Depo., page 237, lines 24-25; page 238, lines 3-5, page 240, lines 12-21, 22-25; page 241 lines 1-6, 14-22, attached as Exhibit 1 to the Retmier Decl.] Apparently asserted to prejudice the Court. 31. It can be inferred that such outrageous conduct by Defendants over a prolonged period of time would cause a reasonable employee sever distress especially given the employee's dependence on the employer for wages and housing. Ray's symptoms of emotional distress include, but are not limited to, feeling shocked, humiliated, frustrated, and depressed, feeling mistreated in the way that he was paid, feeling like he was treated like a slave, ignored as to his several requests for necessary repairs to his dwelling at the Hotel, ignored as to his several requests for adequate and lawful pay, sad and uncertain about whether he would be able to make enough money to pay his bills and support his family, sleeplessness, worry, anxiety and fear. [Shrestha Depo., page 398, lines 18-25; page 399, lines 1-25; page 400, lines 1-25; page 401, lines 1-3, 21-25; page 402, lines 1-18; page 403, lines 7-25; page 404, lines 1-15, 21-25; page 405, lines 1-2, attached as Exhibit 1 to the Retmier Decl.] Lacks foundation; conclusory. (Evid. Code §§400, 403). Lack of personal knowledge; calls for speculation (Evid. Code §702(a)). 32. Defendants conduct was both intentional and negligent, and was a substantial factor in causing Ray's severe emotional distress. [Shrestha Depo., page 348, lines 5-7; page 532, lines 13-25; page 533, lines 1-7; page 536, lines 11-25; page 537, lines 1-15; page 564, lines16-25; page 565, lines 1-11, 23-25; page 566, lines 1-15, attached as Exhibit 1 to the Retmier Decl.; Amporias Depo., page 276, lines 12-25, attached as Exhibit 3 to the Retmier Decl.] Lacks foundation; conclusory. (Evid. Code §§400, 403). Lack of personal knowledge; calls for speculation (Evid. Code §702(a)). -12- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTF'S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATIONDATED: September 21, 2018 LAW OFFICES OF LORI B. FELDMAN 4 By: /s/ Lori B. Feldman Lori B. Feldman 5 Attorneys for Defendants HOTEL SUNRISE, INC., HOTEL SUNRISE, LLC, KIRITKUMAR PATEL, SHAKUNTLA PATEL, and KETAN PATEL -13- Case No. CGC-16-553387 DEFTS' RESPONSE TO PLTV’S SEP. STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN 148742162 SUPPORT OF PLTF'S OPPOSITION TO RESPONDENTS' MOTION FOR SUMMARY ADJUDICATION