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P. BOBBY SHUKLA (SBN 229736)
SHUKLA LAW
353 Sacramento Street, Suite 400
San Francisco, CA 94111
Tel: (415) 986-1338
Email: bshukla@shuklalawfirm.com
ELECTRONICALLY
FILED
Superior Court of California.
County of Sar Francisco
11/14/2017
Clerk of the Court
BY:GARY FELICIANO
Deputy Clerk
KATHRYN BURKETT DICKSON (SBN: 70636)
EMILY A. NUGENT (SBN: 255048)
ZOE TELLMAN (SBN: 298698)
DICKSON GEESMAN LLP
1999 Harrison Street, Suite 2000
Oakland, CA 94612
Tel: (510) 899-4670
Fax: (510) 899-4671
E-Mail: kathy@dicksongeesman.com
E-Mail: emily@dicksongeesman.com
E-Mail: zoe@dicksongeesman.com
Attorneys for Plaintiff
Julie Ortiz
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO,
UNLIMITED JURISDICTION
JULIE ORTIZ, CASE NO.: CGC-16-549915
Plaintiff,
MERCY HIGH SCHOOL, SAN
FRANCISCO, and DOES ONE through
TWENTY, inclusive,
Defendant.
PLAINTIFF'S BRIEF RE TRIAL
MANAGEMENT OF THE FEHA
RELIGIOUS EXEMPTION ISSUE
Date Filed: January 15, 2016
Date: November 13, 2017
Time: 9:00 a.m.
Dept.: TBA
Trial Date: November 13, 2017
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I. INTRODUCTION.
Mercy High School, the employer defendant in this action, belatedly raised an issue
about whether it is an “employer” covered by the California Fair Employment and Housing Act
in connection with plaintiff's FEHA claims: age discrimination and the employer’s failure to
take all reasonable steps to prevent age discrimination. MHS claims it is a “religious entity” and
therefore exempt from FEHA under Government Code section 12926(d) (excluding religious
entities from the definition of “employer” under the Act). While that might have been true
twenty years ago, the Legislature amended the Act to explicitly carve out of the exemption —
and thus include within the definition of covered employers — religiously-affiliated schools and
hospitals. Gov’t Code section 12926.2.
The parties are filing additional separate briefs addressing the substance of their
arguments regarding the exemption. This brief addresses trial management questions raised by
MHS’s belated invocation of the exemption. Ms. Ortiz, the employee plaintiff here, has three
alternative theories for establishing that MHS is a covered entity, not included within or entitled
to the religious exemption. This brief summarizes each theory and its implications for trial
management.
I. THE THREE THEORIES AND TRIAL MANAGEMENT.
One of Plaintiffs theories is a decision for the Court; the second is fact-based on which
Plaintiff is entitled to a jury determination; and the third is a mixed equitable-legal question
which should also be submitted to the jury. Plaintiff need prevail on only one of her theories to
support a jury determination on age discrimination under FEHA. In other words, MHS can be
found to be a covered employer as a matter of law, or may be precluded for using the exemption
by virtue of equitable estoppel, or because MHS waived the exemption.
A. MHS is Not Entitled to the Exemption as a Matter of Law Based on
Statutory Interpretation Applied to Undisputed Facts — a Legal Question for
the Judge.
Plaintiff has filed an accompanying brief addressing the substance of the FEHA
religious exemption and the parties’ legal arguments. In essence, Plaintiff contends the evidence
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will show as a matter of law based upon undisputed facts that MHS is a “religiously-affiliated”
school no longer covered by the “religious entity” exemption in FEHA. The Legislature made a
considered decision to exclude religiously-affiliated schools (and hospitals) open to the public
from FEHA’s religious entity exemption, which covers religious entities like churches,
synagogues, convents, seminaries, etc. This determination is predominantly a legal conclusion —
applying the language of the statutory exception to the facts. As such, it is a legal question for
the court to decide.
B. MHS Waived the Exemption Based on its Conduct — a Factual
Determination for the Jury.
Even if MHS were not a covered employer under FEHA — in other words, if it were
entitled to claim the exemption — that exemption can be waived by MHS’s actions. Plaintiff will
present factual evidence that MHS led its employees to believe they were protected by FEHA
and that MHS was covered by FEHA. Examples of such evidence include posters placed
conspicuously on the walls of the staff break room every year which explicitly state: “The
California Department of Fair Employment and Housing (DFEH) enforces laws that protect you
from illegal discrimination and harassment in employment based on your actual or perceived...
Age (40) and above. . .”
Plaintiff will also present evidence that MHS required its supervisors and administrators
to take training, including legal requirements for the prevention of discrimination and
harassment under the Fair Employment and Housing Act. These actions caused employees to
believe they were covered by the Act and to rely on those representations. Thus, evidence of
such conduct will be presented to the jury for its determination of whether such actions resulted
in a waiver by MHS of the FEHA exemption.
Waiver is a factual question for the jury.
Mt
if
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Cc. MHS Should be Equitably Estopped from Asserting the Exemption — an
Equitable Determination Intertwined with Waiver for the Jury.
A similar concept is presented by equitable estoppel. Although equitable questions are
often presented to the judge to decide, that is not the case where, as here, the legal question
(waiver) and the equitable question (estoppel) are intertwined and the underlying gist of the
action is legal in nature. The underlying “action” at issue here is legal in nature — age
discrimination under the Fair Employment and Housing Act -- where the remedy is legal in
nature, i.e., money damages. Discrimination is not an equitable claim. It is the underlying “gist”
of the action that determines whether it is for the judge or the jury to decide, including ancillary
equitable issues such as equitable defenses.
So, for example, where a plaintiff sues for damages for conversion and misappropriation
of trade secrets, she has alleged a cause of action at law. Assume the defendant asserts the
equitable defense of unclean hands. The entire case is properly submitted to the jury because the
equitable defense is “intertwined” with the legal claim and raises questions of fact and
credibility properly submitted to a jury. Unilogic, Inc. v. Burroughs Corp. (1992) 10
Cal.App.4th 612, 622-623.
The same exists for the issues of waiver and equitable estoppel in the instant case. They
arise out of the same intertwined conduct and relate to the same fairness issues. Since the
underlying claim is quintessentially a jury question — age discrimination — both issues must be
presented to the jury.
Il. PRACTIAL CONSIDERATIONS AFFECTING TRIAL MANAGEMENT.
The order of proof and presentation of issues is within the sound discretion of the trial
judge. Evidence Code § 320. Factors courts are likely to consider include avoiding delay in trial
and resolution of the case; whether issues to be decided by the court will duplicate issues to be
addressed by the jury resulting in two “trials” and overlapping evidence and witnesses; whether
the issues addressed by the court have any chance of obviating the need for a jury trial at all;
and minimizing the cost and expense to the parties and the court.
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Here, there would be no savings by having the court decide the legal issue of FEHA
coverage first. Plaintiff has a claim for wrongful discharge in violation of public policy based on
the strong public policy against age discrimination found in federal law as well as state law.
Since the public policy underlying a tortious wrongful discharge claim in California can be
based on federal or state law, Judge Kahn ruled that Plaintiff's wrongful discharge claim could
proceed, irrespective of whether a FEHA claim was available or not. So, all of the evidence
about age discrimination is going to be presented in the jury trial no matter what the trial judge
were to decide in any initial phase.
Similarly, since the waiver and estoppel issues will also be presented to the jury, there is
little rationale for delaying the trial for the court to decide the legal issue on the exemption —
whether it does so on the papers or through an evidentiary bench trial.
If Plaintiff succeeds on her waiver or estoppel theories, it would not matter whether the
Court were to find that the religious exemption applies or does not apply as a matter of law.
Conversely, if Plaintiff were to lose on age discrimination under both FEHA and wrongful
discharge, again, it would not matter whether the court were to find the exemption applicable or
not. There would be no point. It would be moot.
Finally, to the extent there are factual issues intertwined with the legal question of
whether MHS is or is not a covered employer under FEHA, the court would have the added
benefit of any relevant evidence that had been presented during the jury trial.
Whether the court determines that the legal issue should be decided before or after the
jury trial, Plaintiff suggests that the evidence should be presented by way of declarations,
exhibits, and briefing, followed by submission of proposed findings of fact and conclusions of
law, rather than through a live evidentiary bench trial. The facts are what they are. This is not an
issue where credibility plays a role. The court can decide on the basis of the papers — much like
a summary judgment motion — whether MHS is entitled to the religious exemption or whether it
falls into the category of religiously-affiliated schools and hospitals the Legislature determined
should be covered by the Act.
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For these reasons, Plaintiff contends it would be most efficient for the jury trial to
proceed and if there is reason for the Court to address the exemption issue after trial, then that
could occur at that time.
Dated: November 8, 2017 DICKSON GEESMAN LLP
f? «
py. KZhe— rsahers Ouiher
KATHRYN BURKETT DICKSON
Attorneys for Plaintiff
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PROOF OF SERVICE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Tam employed in the County of Alameda, State of California; I am over the age of 18
years and not a party to the within entitled action; my business address is 1999 Harrison Street,
Suite 2000, Oakland, California 94612.
On November 8, 2017, I served the foregoing documents, described as PLAINTIFF'S
BRIEF RE TRIAL MANAGEMENT OF THE FEHA RELIGIOUS EXEMPTION ISSUE
on the interested parties to said action by the following means:
oO ( By Facsimile Transmission) By transmitting via facsimile the document(s) listed
above to the fax number(s) set forth below.
oO (By Mail) By placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in the United States Mail at Oakland, California addressed as set
forth below.
oO ( By Hand Delivery) By causing a true copy thereof, enclosed in a sealed envelope, to
be delivered by hand to the addresses shown below.
Oo (By Overnight Delivery) By placing a true copy thereof, enclosed in a sealed envelope,
with delivery charges prepaid, to be sent by Federal Express, addressed as shown
below.
oO (By Personal Service) By personally delivering a true copy thereof, enclosed in a
sealed envelope, to the addressees shown below.
I (By E-Mail) By electronically transmitting the document(s) listed above, by agreement
between the parties, or by court order, addressed as set forth below. I did not receive an
electronic message indicating any errors in transmission.
Paul E. Gaspari Also served:
Shauna N. Correia
Michelle L. Covington Marilynn J. Cooper: mcooper@weintraub.com
Weintraub Tobin Chediak Coleman Grodin | Edith S. Sanchez: esanchez@weintraub.com
475 Sansome Street, Suite 1800 Justine T. Woodland:jwoodland@weintraub.com
San Francisco, CA 94111
Telephone: 415.433.1400
Facsimile: 415.433.3883
E-Mail: pgaspari@weintraub.com
E-Mail: scorreia@weintraub.com
E-Mail: mcovington@weintraub.com
Attorneys for Defendant
MERCY HIGH SCHOOL, SAN FRANCISCO
(State) I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
Executed on November 8, 2017, at Oakland, ONG xc
PETRA WACH
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Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915
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Cem IN DAW RF WwW N P. BOBBY SHUKLA (SBN 229736) SHUKLA LAW 353 Sacramento Street, Suite 400 San Francisco, CA 94111 Tel: (415) 986-1338 Email: bshukla@shuklalawfirm.com ELECTRONICALLY FILED Superior Court of California. County of Sar Francisco 11/14/2017 Clerk of the Court BY:GARY FELICIANO Deputy Clerk KATHRYN BURKETT DICKSON (SBN: 70636) EMILY A. NUGENT (SBN: 255048) ZOE TELLMAN (SBN: 298698) DICKSON GEESMAN LLP 1999 Harrison Street, Suite 2000 Oakland, CA 94612 Tel: (510) 899-4670 Fax: (510) 899-4671 E-Mail: kathy@dicksongeesman.com E-Mail: emily@dicksongeesman.com E-Mail: zoe@dicksongeesman.com Attorneys for Plaintiff Julie Ortiz SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION JULIE ORTIZ, CASE NO.: CGC-16-549915 Plaintiff, MERCY HIGH SCHOOL, SAN FRANCISCO, and DOES ONE through TWENTY, inclusive, Defendant. PLAINTIFF'S BRIEF RE TRIAL MANAGEMENT OF THE FEHA RELIGIOUS EXEMPTION ISSUE Date Filed: January 15, 2016 Date: November 13, 2017 Time: 9:00 a.m. Dept.: TBA Trial Date: November 13, 2017 -I- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915Ce DN DAW FF BN = 6 b 13 I. INTRODUCTION. Mercy High School, the employer defendant in this action, belatedly raised an issue about whether it is an “employer” covered by the California Fair Employment and Housing Act in connection with plaintiff's FEHA claims: age discrimination and the employer’s failure to take all reasonable steps to prevent age discrimination. MHS claims it is a “religious entity” and therefore exempt from FEHA under Government Code section 12926(d) (excluding religious entities from the definition of “employer” under the Act). While that might have been true twenty years ago, the Legislature amended the Act to explicitly carve out of the exemption — and thus include within the definition of covered employers — religiously-affiliated schools and hospitals. Gov’t Code section 12926.2. The parties are filing additional separate briefs addressing the substance of their arguments regarding the exemption. This brief addresses trial management questions raised by MHS’s belated invocation of the exemption. Ms. Ortiz, the employee plaintiff here, has three alternative theories for establishing that MHS is a covered entity, not included within or entitled to the religious exemption. This brief summarizes each theory and its implications for trial management. I. THE THREE THEORIES AND TRIAL MANAGEMENT. One of Plaintiffs theories is a decision for the Court; the second is fact-based on which Plaintiff is entitled to a jury determination; and the third is a mixed equitable-legal question which should also be submitted to the jury. Plaintiff need prevail on only one of her theories to support a jury determination on age discrimination under FEHA. In other words, MHS can be found to be a covered employer as a matter of law, or may be precluded for using the exemption by virtue of equitable estoppel, or because MHS waived the exemption. A. MHS is Not Entitled to the Exemption as a Matter of Law Based on Statutory Interpretation Applied to Undisputed Facts — a Legal Question for the Judge. Plaintiff has filed an accompanying brief addressing the substance of the FEHA religious exemption and the parties’ legal arguments. In essence, Plaintiff contends the evidence 2- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915Ce DN DAW FF BN = 6 b 13 will show as a matter of law based upon undisputed facts that MHS is a “religiously-affiliated” school no longer covered by the “religious entity” exemption in FEHA. The Legislature made a considered decision to exclude religiously-affiliated schools (and hospitals) open to the public from FEHA’s religious entity exemption, which covers religious entities like churches, synagogues, convents, seminaries, etc. This determination is predominantly a legal conclusion — applying the language of the statutory exception to the facts. As such, it is a legal question for the court to decide. B. MHS Waived the Exemption Based on its Conduct — a Factual Determination for the Jury. Even if MHS were not a covered employer under FEHA — in other words, if it were entitled to claim the exemption — that exemption can be waived by MHS’s actions. Plaintiff will present factual evidence that MHS led its employees to believe they were protected by FEHA and that MHS was covered by FEHA. Examples of such evidence include posters placed conspicuously on the walls of the staff break room every year which explicitly state: “The California Department of Fair Employment and Housing (DFEH) enforces laws that protect you from illegal discrimination and harassment in employment based on your actual or perceived... Age (40) and above. . .” Plaintiff will also present evidence that MHS required its supervisors and administrators to take training, including legal requirements for the prevention of discrimination and harassment under the Fair Employment and Housing Act. These actions caused employees to believe they were covered by the Act and to rely on those representations. Thus, evidence of such conduct will be presented to the jury for its determination of whether such actions resulted in a waiver by MHS of the FEHA exemption. Waiver is a factual question for the jury. Mt if iif 3- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915Ce DN DAW FF BN = 6 b 13 Cc. MHS Should be Equitably Estopped from Asserting the Exemption — an Equitable Determination Intertwined with Waiver for the Jury. A similar concept is presented by equitable estoppel. Although equitable questions are often presented to the judge to decide, that is not the case where, as here, the legal question (waiver) and the equitable question (estoppel) are intertwined and the underlying gist of the action is legal in nature. The underlying “action” at issue here is legal in nature — age discrimination under the Fair Employment and Housing Act -- where the remedy is legal in nature, i.e., money damages. Discrimination is not an equitable claim. It is the underlying “gist” of the action that determines whether it is for the judge or the jury to decide, including ancillary equitable issues such as equitable defenses. So, for example, where a plaintiff sues for damages for conversion and misappropriation of trade secrets, she has alleged a cause of action at law. Assume the defendant asserts the equitable defense of unclean hands. The entire case is properly submitted to the jury because the equitable defense is “intertwined” with the legal claim and raises questions of fact and credibility properly submitted to a jury. Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 622-623. The same exists for the issues of waiver and equitable estoppel in the instant case. They arise out of the same intertwined conduct and relate to the same fairness issues. Since the underlying claim is quintessentially a jury question — age discrimination — both issues must be presented to the jury. Il. PRACTIAL CONSIDERATIONS AFFECTING TRIAL MANAGEMENT. The order of proof and presentation of issues is within the sound discretion of the trial judge. Evidence Code § 320. Factors courts are likely to consider include avoiding delay in trial and resolution of the case; whether issues to be decided by the court will duplicate issues to be addressed by the jury resulting in two “trials” and overlapping evidence and witnesses; whether the issues addressed by the court have any chance of obviating the need for a jury trial at all; and minimizing the cost and expense to the parties and the court. -4- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915Ce DN DAW FF BN = 6 b 13 Here, there would be no savings by having the court decide the legal issue of FEHA coverage first. Plaintiff has a claim for wrongful discharge in violation of public policy based on the strong public policy against age discrimination found in federal law as well as state law. Since the public policy underlying a tortious wrongful discharge claim in California can be based on federal or state law, Judge Kahn ruled that Plaintiff's wrongful discharge claim could proceed, irrespective of whether a FEHA claim was available or not. So, all of the evidence about age discrimination is going to be presented in the jury trial no matter what the trial judge were to decide in any initial phase. Similarly, since the waiver and estoppel issues will also be presented to the jury, there is little rationale for delaying the trial for the court to decide the legal issue on the exemption — whether it does so on the papers or through an evidentiary bench trial. If Plaintiff succeeds on her waiver or estoppel theories, it would not matter whether the Court were to find that the religious exemption applies or does not apply as a matter of law. Conversely, if Plaintiff were to lose on age discrimination under both FEHA and wrongful discharge, again, it would not matter whether the court were to find the exemption applicable or not. There would be no point. It would be moot. Finally, to the extent there are factual issues intertwined with the legal question of whether MHS is or is not a covered employer under FEHA, the court would have the added benefit of any relevant evidence that had been presented during the jury trial. Whether the court determines that the legal issue should be decided before or after the jury trial, Plaintiff suggests that the evidence should be presented by way of declarations, exhibits, and briefing, followed by submission of proposed findings of fact and conclusions of law, rather than through a live evidentiary bench trial. The facts are what they are. This is not an issue where credibility plays a role. The court can decide on the basis of the papers — much like a summary judgment motion — whether MHS is entitled to the religious exemption or whether it falls into the category of religiously-affiliated schools and hospitals the Legislature determined should be covered by the Act. -5- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915Cem IN DAW RF WwW N For these reasons, Plaintiff contends it would be most efficient for the jury trial to proceed and if there is reason for the Court to address the exemption issue after trial, then that could occur at that time. Dated: November 8, 2017 DICKSON GEESMAN LLP f? « py. KZhe— rsahers Ouiher KATHRYN BURKETT DICKSON Attorneys for Plaintiff -6- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915Ce DN DAW FF BN = 6 b 13 PROOF OF SERVICE SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Tam employed in the County of Alameda, State of California; I am over the age of 18 years and not a party to the within entitled action; my business address is 1999 Harrison Street, Suite 2000, Oakland, California 94612. On November 8, 2017, I served the foregoing documents, described as PLAINTIFF'S BRIEF RE TRIAL MANAGEMENT OF THE FEHA RELIGIOUS EXEMPTION ISSUE on the interested parties to said action by the following means: oO ( By Facsimile Transmission) By transmitting via facsimile the document(s) listed above to the fax number(s) set forth below. oO (By Mail) By placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Oakland, California addressed as set forth below. oO ( By Hand Delivery) By causing a true copy thereof, enclosed in a sealed envelope, to be delivered by hand to the addresses shown below. Oo (By Overnight Delivery) By placing a true copy thereof, enclosed in a sealed envelope, with delivery charges prepaid, to be sent by Federal Express, addressed as shown below. oO (By Personal Service) By personally delivering a true copy thereof, enclosed in a sealed envelope, to the addressees shown below. I (By E-Mail) By electronically transmitting the document(s) listed above, by agreement between the parties, or by court order, addressed as set forth below. I did not receive an electronic message indicating any errors in transmission. Paul E. Gaspari Also served: Shauna N. Correia Michelle L. Covington Marilynn J. Cooper: mcooper@weintraub.com Weintraub Tobin Chediak Coleman Grodin | Edith S. Sanchez: esanchez@weintraub.com 475 Sansome Street, Suite 1800 Justine T. Woodland:jwoodland@weintraub.com San Francisco, CA 94111 Telephone: 415.433.1400 Facsimile: 415.433.3883 E-Mail: pgaspari@weintraub.com E-Mail: scorreia@weintraub.com E-Mail: mcovington@weintraub.com Attorneys for Defendant MERCY HIGH SCHOOL, SAN FRANCISCO (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 8, 2017, at Oakland, ONG xc PETRA WACH -7- Plaintiff's Brief re Trial Management of the FEHA Religious Exemption Issue - Case No. CGC-16-549915