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1 AMANDA B. WHITTEN - #251160 E-FILED
BRYANT WHITTEN, LLP 1/6/2021 12:20 PM
2 8050 North Palm Avenue, Suite 210 Superior Court of California
Fresno, California 93711 County of Fresno
3 (559) 494-4910 Telephone By: A. Ramos, Deputy
(559) 421-0369 Facsimile
4
5
6 Attorneys for Plaintiff, CRAIG CLIFFORD
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
9
10 CRAIG CLIFFORD, ) Case No. 19 CE CG 03807
)
11 Plaintiff, ) OBJECTIONS TO EVIDENCE IN
) SUPPORT OF PLAINTIFF’S
12 vs. ) OPPOSITION TO DEFENDANTS’
) MOTION FOR SUMMARY
13 LEHIGH HANSON INC., a Delaware ) JUDGMENT OR, IN THE
corporation, JEFF RASH, an individual, and ) ALTERNATIVE, SUMMARY
14 Does 1 through 20, inclusive, ) ADJUDICATION
)
15 Defendants. ) Date : January 20, 2021
) Time : 9:00 a.m.
16 ) Dept : 501
Judge : D. Tyler Tharpe
17
Complaint Filed: October 18, 2019
18 Trial Date: March 1, 2021
19 Plaintiff, CRAIG CLIFFORD, respectfully submits these Objections to Evidence submitted
20 by Defendant in support of the Motion for Summary Judgment. Plaintiff requests a specific ruling
21 on each objection.
22 Objections to Declaration of Ozzie Diaz
23 Objection No. 1:
24 ¶6, p. 3, lines 13-16 “On or about November 9, 2018, I received an email from my superior,
25 West Region President Daniel Fritz, regarding cost-savings measures to be implemented over the
26 following several months. Mr. Fritz’s email outlined several measures.”
27 ///
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 1
1 Grounds for Objection:
2 Stronger and More Satisfactory Evidence Rule. Evidence Code §412; “If weaker and less
3 satisfactory evidence is offered when it was within the power of the party to produce stronger and
4 more satisfactory evidence, the evidence offered should be viewed with distrust.” There was no
5 reason preventing Defendant from attaching the email and letting that document speak for itself.
6 Without that evidence, this statement should be distrusted.
7 Hearsay. Evidence Code §1200; Fritz’s out of court statements are hearsay - evidence of a
8 statement that was made outside of court and is offered to prove the truth of the matter stated.
9 Lacks Foundation. CCP §437c(d); Evidence Code §§403(a)(2), 405, 702; Keniston v.
10 American Nat. Ins. Co. (1973) 31 Cal. App. 3d 803, 813 (approving of trial court sustaining objections
11 to declarations where “no facts were set forth . . . much less a showing made that matters stated were
12 within the personal knowledge of the declarants . . . .”); Snider v. Snider (1962) 200 Cal. App. 2d 741,
13 754 (“[T]he ‘facts stated herein are within the personal knowledge of the affiant, and that affiant, if
14 sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show
15 it, such bare statements of the affiant have no redeeming value and should be ignored.”) Again, Diaz
16 does not attach the email he refers to.
17 Court's Ruling on Objection 1: Sustained: __________
18 Overruled: __________
19 Objection No. 2:
20 ¶7, p. 3, lines 20-24 “In the winter of 2018 and into the beginning of 2019, the asphalt business
21 of CMI for which Plaintiff Craig Clifford worked was really slow and performing poorly. Based on
22 my experience in the asphalt business, it was slow because there was frequent rain during that time
23 and our customers do not need asphalt during periods of frequent rain because paving is not done due
24 to soil conditions.”
25 Grounds for Objection:
26 Lacks Foundation/Authentication. Evidence Code §1400; Diaz’ declaration does not state what
27 this testimony is based on, whether it’s his review of specific records or his memory.
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 2
1 Stronger and More Satisfactory Evidence Rule. Evidence Code §412; “If weaker and less
2 satisfactory evidence is offered when it was within the power of the party to produce stronger and
3 more satisfactory evidence, the evidence offered should be viewed with distrust.” There was no
4 reason preventing Defendant from producing the business records Diaz relies on in making this
5 statement. Without that evidence, this statement should be distrusted.
6 Court's Ruling on Objection 2: Sustained: __________
7 Overruled: __________
8 Objection No. 3:
9 ¶8, p. 4, lines 3-5 “I asked Mr. Rash to look at the positions under his supervision to determine
10 if any positions could be eliminated and the duties covered by other positions.”
11 Grounds for Objection:
12 Conflicts With Deposition Testimony. Cleveland v. Policy Management Sys. Corp. (1999)
13 526 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also
14 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where
15 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach
16 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006)
17 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is
18 insufficient to defeat summary judgment]
19 In deposition, this witness testified that it was Jeff Rash who first suggested Plaintiff should
20 be terminated. [Exhibit “G” to Whitten Dec., Diaz DT 26:24-27:1] According to his testimony, his
21 memory of any conversation pre-dating Rash’s suggestion did not include anything like what he is
22 now declaring in an attorney-drafted self-serving declaration. The declaration should be regarded as
23 it conflicts with his deposition testimony.
24 Court's Ruling on Objection 3: Sustained: __________
25 Overruled: __________
26 ///
27 ///
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 3
1 Objection No. 4:
2 ¶12, p. 4, lines 24-27: “I never took any action against Mr. Clifford because of his back injury,
3 request(s) for accommodation, leave of absence, or because Mr. Clifford ever allegedly complained
4 that he was not accommodated and/or did not receive meal periods or compensation for missed meal
5 periods.”
6 Grounds for Objection:
7 Conclusory Declarations Should Be Disregarded: Courts have held that they can disregard
8 a self-serving declaration that states only conclusions and not facts that would be admissible evidence.
9 [Nigro v. Sears, Roebuck and Co. (9th Cir. 2015) 784 F. 3d 495 citing Villiarimo v. Aloha Island Air,
10 Inc. (9th Cir. 2002) 281 F. 3d 1054, 1059 n. 5, 1061; F.T.C. v. Publ’g Clearning House, Inc. (9th Cir.
11 1997) 104 F. 3d 1168, 1171 (“A conclusory, self-serving affidavit, lacking detailed facts and any
12 supporting evidence, is insufficient to create a genuine issue of material fact.”.)]
13 Diaz’ self-serving attorney-drafted declaration testimony that makes only conclusory
14 statements about his lack of discriminatory animus should be disregarded.
15 Court's Ruling on Objection 4: Sustained: __________
16 Overruled: __________
17 Objections to Declaration of Ginger Qualls
18 Objection No. 5:
19 ¶8, p. 4, lines 11-18:“During the call, Mr. Rash and I informed Mr. Clifford about the terms
20 of CMI’s Family and Medical Leave and Return to Work Policies, including that, after a certain
21 period of time, there was a possibility that Mr. Clifford’s position could be filled, but that did not
22 mean that there would not be another position available for him when he was able to return to work.
23 Neither I nor Mr. Rash told Mr. Clifford that he had to return to work by a certain date or his position
24 would be filled, but we did attempt to find out from him when he thought he would be returning to
25 work.”
26 ///
27 ///
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 4
1 Grounds for Objection:
2 Conflicts with Deposition Testimony. Cleveland v. Policy Management Sys. Corp. (1999) 526
3 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also
4 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where
5 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach
6 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006)
7 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is
8 insufficient to defeat summary judgment] Lehigh Hanson’s Return to Work Policy states that
9 employees who are off of work will only be guaranteed to return to their same position if they return
10 within 90 days. [Ex. 18 to Exhibit “F” to Whitten Dec., Clifford Dec.] In deposition, Ginger Qualls
11 admitted that she did not tell Plaintiff this policy was flexible or that his position would not be filled.
12 [Exhibit “I” to Whitten Dec., Qualls DT 54:11-59:8; 84:25-85:3; 90:6-94:6] This conflicts with her
13 the statement here in her declaration, which she admits she did not write. [Exhibit 66 to Exhibit “I”
14 to Whitten Dec., Qualls DT 120:2-20; 125:22-126:15] The declaration should be regarded as it
15 conflicts with his deposition testimony.
16 Court's Ruling on Objection 5: Sustained: __________
17 Overruled: __________
18 Objection No. 6:
19 ¶15, p. 6, lines 17-25: “Due to a budget shortfall in 2018 and continuing into 2019, based upon
20 my review of a shared personnel management system, I understand that the entities comprising the
21 West Region of the Lehigh Hanson brand engaged in a rolling reduction-in-force, resulting in the
22 elimination of 40 positions, either by way of layoff of an existing employee or elimination of a vacant
23 position. These positions included six positions at CMI, including Mr. Clifford’s Dispatcher position.
24 Mr. Clifford was one of two CMI employees whose position was eliminated on or about April 11,
25 2019; the other was an Accounting Associate. And, Mr. Clifford was one of two Dispatchers whose
26 positions were eliminated at CMI during 2019.”
27 ///
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 5
1 Grounds for Objection:
2 Conflicts with Deposition Testimony. Cleveland v. Policy Management Sys. Corp. (1999) 526
3 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also
4 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where
5 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach
6 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006)
7 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is
8 insufficient to defeat summary judgment] In deposition, Qualls admitted that the statements in her
9 declaration were based on accessing information in a system that is not attached to her declaration.
10 [Exhibit 66 to Exhibit “I” to Whitten Dec., Qualls DT 120:2-123:24] Qualls did not know about the
11 other layoffs at the time they happened - just when her attorney drafted a declaration for her. [Exhibit
12 66 to Exhibit “I” to Whitten Dec., Qualls DT 124:10-17, 125:9-20] The declaration should be
13 regarded as it conflicts with his deposition testimony.
14 Stronger and More Satisfactory Evidence Rule. Evidence Code §412; “If weaker and less
15 satisfactory evidence is offered when it was within the power of the party to produce stronger and
16 more satisfactory evidence, the evidence offered should be viewed with distrust.” There was no
17 reason preventing Defendant from attaching the documents that show these reductions in force, even
18 redacted to protect employee privacy. Without that evidence, this statement should be distrusted.
19 Lacks Foundation. CCP §437c(d); Evidence Code §§403(a)(2), 405, 702; Keniston v.
20 American Nat. Ins. Co. (1973) 31 Cal. App. 3d 803, 813 (approving of trial court sustaining objections
21 to declarations where “no facts were set forth . . . much less a showing made that matters stated were
22 within the personal knowledge of the declarants . . . .”); Snider v. Snider (1962) 200 Cal. App. 2d 741,
23 754 (“[T]he ‘facts stated herein are within the personal knowledge of the affiant, and that affiant, if
24 sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show
25 it,such bare statements of the affiant have no redeeming value and should be ignored.”) Qualls
26 testified she had know personal knowledge of this and the attorney prepared declaration cannot
27 establish foundation for what she admitted in deposition that she does not know.
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 6
1 Court's Ruling on Objection 6: Sustained: __________
2 Overruled: __________
3 Objection No. 7:
4 ¶16, p. 7, lines 1-4: “I never took any action against Mr. Clifford because of his back injury,
5 request(s) for accommodation, leave of absence, or because Mr. Clifford ever allegedly complained
6 that he was not accommodated and/or did not receive meal periods or compensation for missed meal
7 periods.”
8 Grounds for Objection:
9 Conclusory Declarations Should Be Disregarded: Courts have held that they can disregard
10 a self-serving declaration that states only conclusions and not facts that would be admissible evidence.
11 [Nigro v. Sears, Roebuck and Co. (9th Cir. 2015) 784 F. 3d 495 citing Villiarimo v. Aloha Island Air,
12 Inc. (9th Cir. 2002) 281 F. 3d 1054, 1059 n. 5, 1061; F.T.C. v. Publ’g Clearning House, Inc. (9th Cir.
13 1997) 104 F. 3d 1168, 1171 (“A conclusory, self-serving affidavit, lacking detailed facts and any
14 supporting evidence, is insufficient to create a genuine issue of material fact.”.)]
15 Qualls’ self-serving attorney-drafted declaration testimony that makes only conclusory
16 statements about his lack of discriminatory animus should be disregarded. It should be noted that it
17 is a word for word copy and paste from Diaz’ declaration.
18 Court's Ruling on Objection 7: Sustained: __________
19 Overruled: __________
20 Objection No. 8:
21 ¶17, p. 7, lines 9-11: “I decided to eliminate Mr. Clifford’s employment solely because of the
22 business need to reduce headcount and my belief that the duties of Mr. Clifford’s Dispatcher position
23 could be split easily among other employees.
24 Grounds for Objection:
25 Conflicts with Deposition Testimony: Cleveland v. Policy Management Sys. Corp. (1999)
26 526 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also
27 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 7
1 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach
2 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006)
3 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is
4 insufficient to defeat summary judgment] Qualls admitted she lied in her declaration (that she did not
5 write) when she said she both was and was not involved in the decision to terminate.[Exhibit 66 to
6 Exhibit “I” to Whitten Dec., Qualls DT 120:2-20; 125:22-126:15]
7 Qualls testified that she did not make the decision to terminate Plaintiff. [Exhibit “I” to
8 Whitten Dec., Qualls DT 98:22-24] In paragraph 12 of her declaration, she said she was not involved
9 in the decision. Here, she says she was. To the extent Defendant tried to correct this mistake after
10 Plaintiff’s counsel asked about it in deposition, their amendment is untimely and further shows these
11 declarations were nothing more than self-serving attorney-drafted declaration testimony that should
12 be disregarded.
13 Court's Ruling on Objection 8: Sustained: __________
14 Overruled: __________
15 Objections to the Declaration of Jeff Rash
16 Objection No. 11:
17 ¶26, p. 4, lines 24-27: “I never took any action against Mr. Clifford because of his back injury,
18 request(s) for accommodation, leave of absence, or because Mr. Clifford ever allegedly complained
19 that he was not accommodated and/or did not receive meal periods or compensation for missed meal
20 periods.”
21 Grounds for Objection:
22 Conclusory Declarations Should Be Disregarded: Courts have held that they can disregard
23 a self-serving declaration that states only conclusions and not facts that would be admissible evidence.
24 [Nigro v. Sears, Roebuck and Co. (9th Cir. 2015) 784 F. 3d 495 citing Villiarimo v. Aloha Island Air,
25 Inc. (9th Cir. 2002) 281 F. 3d 1054, 1059 n. 5, 1061; F.T.C. v. Publ’g Clearning House, Inc. (9th Cir.
26 1997) 104 F. 3d 1168, 1171 (“A conclusory, self-serving affidavit, lacking detailed facts and any
27 supporting evidence, is insufficient to create a genuine issue of material fact.”.)]
28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 8
1 Rash’s self-serving attorney-drafted declaration testimony that makes only conclusory
2 statements about his lack of discriminatory animus should be disregarded. This paragraph is a word
3 for word copy of paragraphs in the declarations of Qualls and Diaz.
4 Court's Ruling on Objection 4: Sustained: __________
5 Overruled: __________
6 Dated: December 30, 2020 BRYANT WHITTEN, LLP
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AMANDA B. WHITTEN, Attorneys for Plaintiff,
9 CRAIG CLIFFORD
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SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 19 CE CG 03807 Page 9
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1 AMANDA B. WHITTEN - #251160 E-FILED BRYANT WHITTEN, LLP 1/6/2021 12:20 PM 2 8050 North Palm Avenue, Suite 210 Superior Court of California Fresno, California 93711 County of Fresno 3 (559) 494-4910 Telephone By: A. Ramos, Deputy (559) 421-0369 Facsimile 4 5 6 Attorneys for Plaintiff, CRAIG CLIFFORD 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 9 10 CRAIG CLIFFORD, ) Case No. 19 CE CG 03807 ) 11 Plaintiff, ) OBJECTIONS TO EVIDENCE IN ) SUPPORT OF PLAINTIFF’S 12 vs. ) OPPOSITION TO DEFENDANTS’ ) MOTION FOR SUMMARY 13 LEHIGH HANSON INC., a Delaware ) JUDGMENT OR, IN THE corporation, JEFF RASH, an individual, and ) ALTERNATIVE, SUMMARY 14 Does 1 through 20, inclusive, ) ADJUDICATION ) 15 Defendants. ) Date : January 20, 2021 ) Time : 9:00 a.m. 16 ) Dept : 501 Judge : D. Tyler Tharpe 17 Complaint Filed: October 18, 2019 18 Trial Date: March 1, 2021 19 Plaintiff, CRAIG CLIFFORD, respectfully submits these Objections to Evidence submitted 20 by Defendant in support of the Motion for Summary Judgment. Plaintiff requests a specific ruling 21 on each objection. 22 Objections to Declaration of Ozzie Diaz 23 Objection No. 1: 24 ¶6, p. 3, lines 13-16 “On or about November 9, 2018, I received an email from my superior, 25 West Region President Daniel Fritz, regarding cost-savings measures to be implemented over the 26 following several months. Mr. Fritz’s email outlined several measures.” 27 /// 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 1 1 Grounds for Objection: 2 Stronger and More Satisfactory Evidence Rule. Evidence Code §412; “If weaker and less 3 satisfactory evidence is offered when it was within the power of the party to produce stronger and 4 more satisfactory evidence, the evidence offered should be viewed with distrust.” There was no 5 reason preventing Defendant from attaching the email and letting that document speak for itself. 6 Without that evidence, this statement should be distrusted. 7 Hearsay. Evidence Code §1200; Fritz’s out of court statements are hearsay - evidence of a 8 statement that was made outside of court and is offered to prove the truth of the matter stated. 9 Lacks Foundation. CCP §437c(d); Evidence Code §§403(a)(2), 405, 702; Keniston v. 10 American Nat. Ins. Co. (1973) 31 Cal. App. 3d 803, 813 (approving of trial court sustaining objections 11 to declarations where “no facts were set forth . . . much less a showing made that matters stated were 12 within the personal knowledge of the declarants . . . .”); Snider v. Snider (1962) 200 Cal. App. 2d 741, 13 754 (“[T]he ‘facts stated herein are within the personal knowledge of the affiant, and that affiant, if 14 sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show 15 it, such bare statements of the affiant have no redeeming value and should be ignored.”) Again, Diaz 16 does not attach the email he refers to. 17 Court's Ruling on Objection 1: Sustained: __________ 18 Overruled: __________ 19 Objection No. 2: 20 ¶7, p. 3, lines 20-24 “In the winter of 2018 and into the beginning of 2019, the asphalt business 21 of CMI for which Plaintiff Craig Clifford worked was really slow and performing poorly. Based on 22 my experience in the asphalt business, it was slow because there was frequent rain during that time 23 and our customers do not need asphalt during periods of frequent rain because paving is not done due 24 to soil conditions.” 25 Grounds for Objection: 26 Lacks Foundation/Authentication. Evidence Code §1400; Diaz’ declaration does not state what 27 this testimony is based on, whether it’s his review of specific records or his memory. 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 2 1 Stronger and More Satisfactory Evidence Rule. Evidence Code §412; “If weaker and less 2 satisfactory evidence is offered when it was within the power of the party to produce stronger and 3 more satisfactory evidence, the evidence offered should be viewed with distrust.” There was no 4 reason preventing Defendant from producing the business records Diaz relies on in making this 5 statement. Without that evidence, this statement should be distrusted. 6 Court's Ruling on Objection 2: Sustained: __________ 7 Overruled: __________ 8 Objection No. 3: 9 ¶8, p. 4, lines 3-5 “I asked Mr. Rash to look at the positions under his supervision to determine 10 if any positions could be eliminated and the duties covered by other positions.” 11 Grounds for Objection: 12 Conflicts With Deposition Testimony. Cleveland v. Policy Management Sys. Corp. (1999) 13 526 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also 14 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where 15 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach 16 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006) 17 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is 18 insufficient to defeat summary judgment] 19 In deposition, this witness testified that it was Jeff Rash who first suggested Plaintiff should 20 be terminated. [Exhibit “G” to Whitten Dec., Diaz DT 26:24-27:1] According to his testimony, his 21 memory of any conversation pre-dating Rash’s suggestion did not include anything like what he is 22 now declaring in an attorney-drafted self-serving declaration. The declaration should be regarded as 23 it conflicts with his deposition testimony. 24 Court's Ruling on Objection 3: Sustained: __________ 25 Overruled: __________ 26 /// 27 /// 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 3 1 Objection No. 4: 2 ¶12, p. 4, lines 24-27: “I never took any action against Mr. Clifford because of his back injury, 3 request(s) for accommodation, leave of absence, or because Mr. Clifford ever allegedly complained 4 that he was not accommodated and/or did not receive meal periods or compensation for missed meal 5 periods.” 6 Grounds for Objection: 7 Conclusory Declarations Should Be Disregarded: Courts have held that they can disregard 8 a self-serving declaration that states only conclusions and not facts that would be admissible evidence. 9 [Nigro v. Sears, Roebuck and Co. (9th Cir. 2015) 784 F. 3d 495 citing Villiarimo v. Aloha Island Air, 10 Inc. (9th Cir. 2002) 281 F. 3d 1054, 1059 n. 5, 1061; F.T.C. v. Publ’g Clearning House, Inc. (9th Cir. 11 1997) 104 F. 3d 1168, 1171 (“A conclusory, self-serving affidavit, lacking detailed facts and any 12 supporting evidence, is insufficient to create a genuine issue of material fact.”.)] 13 Diaz’ self-serving attorney-drafted declaration testimony that makes only conclusory 14 statements about his lack of discriminatory animus should be disregarded. 15 Court's Ruling on Objection 4: Sustained: __________ 16 Overruled: __________ 17 Objections to Declaration of Ginger Qualls 18 Objection No. 5: 19 ¶8, p. 4, lines 11-18:“During the call, Mr. Rash and I informed Mr. Clifford about the terms 20 of CMI’s Family and Medical Leave and Return to Work Policies, including that, after a certain 21 period of time, there was a possibility that Mr. Clifford’s position could be filled, but that did not 22 mean that there would not be another position available for him when he was able to return to work. 23 Neither I nor Mr. Rash told Mr. Clifford that he had to return to work by a certain date or his position 24 would be filled, but we did attempt to find out from him when he thought he would be returning to 25 work.” 26 /// 27 /// 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 4 1 Grounds for Objection: 2 Conflicts with Deposition Testimony. Cleveland v. Policy Management Sys. Corp. (1999) 526 3 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also 4 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where 5 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach 6 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006) 7 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is 8 insufficient to defeat summary judgment] Lehigh Hanson’s Return to Work Policy states that 9 employees who are off of work will only be guaranteed to return to their same position if they return 10 within 90 days. [Ex. 18 to Exhibit “F” to Whitten Dec., Clifford Dec.] In deposition, Ginger Qualls 11 admitted that she did not tell Plaintiff this policy was flexible or that his position would not be filled. 12 [Exhibit “I” to Whitten Dec., Qualls DT 54:11-59:8; 84:25-85:3; 90:6-94:6] This conflicts with her 13 the statement here in her declaration, which she admits she did not write. [Exhibit 66 to Exhibit “I” 14 to Whitten Dec., Qualls DT 120:2-20; 125:22-126:15] The declaration should be regarded as it 15 conflicts with his deposition testimony. 16 Court's Ruling on Objection 5: Sustained: __________ 17 Overruled: __________ 18 Objection No. 6: 19 ¶15, p. 6, lines 17-25: “Due to a budget shortfall in 2018 and continuing into 2019, based upon 20 my review of a shared personnel management system, I understand that the entities comprising the 21 West Region of the Lehigh Hanson brand engaged in a rolling reduction-in-force, resulting in the 22 elimination of 40 positions, either by way of layoff of an existing employee or elimination of a vacant 23 position. These positions included six positions at CMI, including Mr. Clifford’s Dispatcher position. 24 Mr. Clifford was one of two CMI employees whose position was eliminated on or about April 11, 25 2019; the other was an Accounting Associate. And, Mr. Clifford was one of two Dispatchers whose 26 positions were eliminated at CMI during 2019.” 27 /// 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 5 1 Grounds for Objection: 2 Conflicts with Deposition Testimony. Cleveland v. Policy Management Sys. Corp. (1999) 526 3 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also 4 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where 5 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach 6 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006) 7 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is 8 insufficient to defeat summary judgment] In deposition, Qualls admitted that the statements in her 9 declaration were based on accessing information in a system that is not attached to her declaration. 10 [Exhibit 66 to Exhibit “I” to Whitten Dec., Qualls DT 120:2-123:24] Qualls did not know about the 11 other layoffs at the time they happened - just when her attorney drafted a declaration for her. [Exhibit 12 66 to Exhibit “I” to Whitten Dec., Qualls DT 124:10-17, 125:9-20] The declaration should be 13 regarded as it conflicts with his deposition testimony. 14 Stronger and More Satisfactory Evidence Rule. Evidence Code §412; “If weaker and less 15 satisfactory evidence is offered when it was within the power of the party to produce stronger and 16 more satisfactory evidence, the evidence offered should be viewed with distrust.” There was no 17 reason preventing Defendant from attaching the documents that show these reductions in force, even 18 redacted to protect employee privacy. Without that evidence, this statement should be distrusted. 19 Lacks Foundation. CCP §437c(d); Evidence Code §§403(a)(2), 405, 702; Keniston v. 20 American Nat. Ins. Co. (1973) 31 Cal. App. 3d 803, 813 (approving of trial court sustaining objections 21 to declarations where “no facts were set forth . . . much less a showing made that matters stated were 22 within the personal knowledge of the declarants . . . .”); Snider v. Snider (1962) 200 Cal. App. 2d 741, 23 754 (“[T]he ‘facts stated herein are within the personal knowledge of the affiant, and that affiant, if 24 sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show 25 it,such bare statements of the affiant have no redeeming value and should be ignored.”) Qualls 26 testified she had know personal knowledge of this and the attorney prepared declaration cannot 27 establish foundation for what she admitted in deposition that she does not know. 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 6 1 Court's Ruling on Objection 6: Sustained: __________ 2 Overruled: __________ 3 Objection No. 7: 4 ¶16, p. 7, lines 1-4: “I never took any action against Mr. Clifford because of his back injury, 5 request(s) for accommodation, leave of absence, or because Mr. Clifford ever allegedly complained 6 that he was not accommodated and/or did not receive meal periods or compensation for missed meal 7 periods.” 8 Grounds for Objection: 9 Conclusory Declarations Should Be Disregarded: Courts have held that they can disregard 10 a self-serving declaration that states only conclusions and not facts that would be admissible evidence. 11 [Nigro v. Sears, Roebuck and Co. (9th Cir. 2015) 784 F. 3d 495 citing Villiarimo v. Aloha Island Air, 12 Inc. (9th Cir. 2002) 281 F. 3d 1054, 1059 n. 5, 1061; F.T.C. v. Publ’g Clearning House, Inc. (9th Cir. 13 1997) 104 F. 3d 1168, 1171 (“A conclusory, self-serving affidavit, lacking detailed facts and any 14 supporting evidence, is insufficient to create a genuine issue of material fact.”.)] 15 Qualls’ self-serving attorney-drafted declaration testimony that makes only conclusory 16 statements about his lack of discriminatory animus should be disregarded. It should be noted that it 17 is a word for word copy and paste from Diaz’ declaration. 18 Court's Ruling on Objection 7: Sustained: __________ 19 Overruled: __________ 20 Objection No. 8: 21 ¶17, p. 7, lines 9-11: “I decided to eliminate Mr. Clifford’s employment solely because of the 22 business need to reduce headcount and my belief that the duties of Mr. Clifford’s Dispatcher position 23 could be split easily among other employees. 24 Grounds for Objection: 25 Conflicts with Deposition Testimony: Cleveland v. Policy Management Sys. Corp. (1999) 26 526 U.S. 895, 806; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22] (See also 27 Archdale v. American Internat, Specialty Lines Ins. Co. (2007) 154 Cal. App. 4th 449, 473 [“Where 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 7 1 a party’s self-serving declarations contradict credible discovery admissions and purport to impeach 2 that party’s own prior sworn testimony, they should be disregarded”]; Collins v. Hertz Corp. (2006) 3 144 Cal. App. 4th 64, at pp. 75 fn 5, 79 [a declaration contradicting deposition testimony is 4 insufficient to defeat summary judgment] Qualls admitted she lied in her declaration (that she did not 5 write) when she said she both was and was not involved in the decision to terminate.[Exhibit 66 to 6 Exhibit “I” to Whitten Dec., Qualls DT 120:2-20; 125:22-126:15] 7 Qualls testified that she did not make the decision to terminate Plaintiff. [Exhibit “I” to 8 Whitten Dec., Qualls DT 98:22-24] In paragraph 12 of her declaration, she said she was not involved 9 in the decision. Here, she says she was. To the extent Defendant tried to correct this mistake after 10 Plaintiff’s counsel asked about it in deposition, their amendment is untimely and further shows these 11 declarations were nothing more than self-serving attorney-drafted declaration testimony that should 12 be disregarded. 13 Court's Ruling on Objection 8: Sustained: __________ 14 Overruled: __________ 15 Objections to the Declaration of Jeff Rash 16 Objection No. 11: 17 ¶26, p. 4, lines 24-27: “I never took any action against Mr. Clifford because of his back injury, 18 request(s) for accommodation, leave of absence, or because Mr. Clifford ever allegedly complained 19 that he was not accommodated and/or did not receive meal periods or compensation for missed meal 20 periods.” 21 Grounds for Objection: 22 Conclusory Declarations Should Be Disregarded: Courts have held that they can disregard 23 a self-serving declaration that states only conclusions and not facts that would be admissible evidence. 24 [Nigro v. Sears, Roebuck and Co. (9th Cir. 2015) 784 F. 3d 495 citing Villiarimo v. Aloha Island Air, 25 Inc. (9th Cir. 2002) 281 F. 3d 1054, 1059 n. 5, 1061; F.T.C. v. Publ’g Clearning House, Inc. (9th Cir. 26 1997) 104 F. 3d 1168, 1171 (“A conclusory, self-serving affidavit, lacking detailed facts and any 27 supporting evidence, is insufficient to create a genuine issue of material fact.”.)] 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 8 1 Rash’s self-serving attorney-drafted declaration testimony that makes only conclusory 2 statements about his lack of discriminatory animus should be disregarded. This paragraph is a word 3 for word copy of paragraphs in the declarations of Qualls and Diaz. 4 Court's Ruling on Objection 4: Sustained: __________ 5 Overruled: __________ 6 Dated: December 30, 2020 BRYANT WHITTEN, LLP 7 8 AMANDA B. WHITTEN, Attorneys for Plaintiff, 9 CRAIG CLIFFORD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 19 CE CG 03807 Page 9