Preview
1 Wendy E. Musell, State Bar No. 203507
Brittany Wightman, State Bar No. 341838
2 LAW OFFICES OF WENDY MUSELL
180 Grand Ave. Suite 1300
3 Oakland, CA 94612 2/18/2022
Tel.: (510) 270-2252
4 Fax: (510) 228-1391
Email: wmusell@wendymuselllaw.com
5
Attorney for Plaintiff
6 JULIE COULOMBE
7
IN THE SUPERIOR COURT OF CALIFORNIA
8 IN AND FOR THE COUNTY OF BUTTE
9
10 JULIE COULOMBE ) Case No. 18CV02884
)
11 Plaintiff, )
)
12 v. )
) PLAINTIFF’S OBJECTIONS TO
13 ) DEFENDANT’S EVIDENCE
BUTTE COUNTY PROBATION and DOES ) OFFERED RE DEFENDANT’S
14 1-10 inclusive, ) MOTION FOR SUMMARY
) JUDGMENT AND IN THE
15 ) ALTERNATIVE, SUMMARY
Defendants. ) ADJUDICATION
16 )
) Hearing Date: March 4, 2022
17 ) Time: 1:30 PM
) Dept.: 0
18 ) Hon. Molly Bigelow
)
19 ) Complaint Filed: September 4, 2018
)
20 )
21
22
23
24
25
26
27
28
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1
Objections to Declaration of Sheri Waters
2
3 Material Objected to: Grounds for Objection:
4 1. Waters Decl, 2:6-8, “4. I have Lacks foundation; no personal knowledge
5 reviewed Exhibit A to the Index of (Evidence Code §702)
Exhibits. Exhibits A is a true and
6
correct copy of an audio recording
7
that Mr. Lebak provided to the
8 County of his interview with
9 Plaintiff,”
10 2. Waters Decl., 2:11-12, “6. On or Lacks foundation; no personal knowledge
11 about August 16, 2017, Lebak (Evidence Code §702)
concluded his investigation and
12
provided the County with a copy of
13
his report.
14
15 3. Waters Decl., 2:12-14, “I have Lacks foundation; no personal knowledge
16 reviewed Exhibit Y to the Index of (Evidence Code §702)
17 Exhibits. Exhibit Y is a true and
correct copy of the introduction and
18
conclusion sections of Mr. Lebak’s
19
investigation report with the
20
summaries of interviews of witnesses
21 redacted from the report.”
22 4. Waters Decl., 2:14-16, “Lebak Lacks foundation; no personal knowledge
23 concluded, and the County adopted (Evidence Code §702); hearsay (Evidence
24 the conclusion, that Plaintiff’s Code §1200)
complaint of a hostile work
25
environment was “not sustained”
26
because in part:”
27
5. Waters Decl., 2:16-22, “It seems Lacks foundation; no personal knowledge
28
1
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1 apparent that Cole is upset with (Evidence Code §702); hearsay (Evidence
2 Coulombe as she took over the job he Code §1200).
3 formerly had supervising a unit.
There is no indication that he is upset
4
about this due to Coulombe’s gender.
5
Cole does not work in Coulombe’s
6
unit and it seems there have been no
7 real disruptions by Cole from the
8 time when Coulombe took over
9 supervision of the unit and the weeks
or months after until this most recent
10
in July 2017. I do not see where
11
Cole’s actions were pervasive, lasting
12
over a long time, and seriously
13 disrupting the work or interfering
14 with the career progress of
15 Coulombe. Contrary to this the
Department picked Coulombe to
16
supervise the unit over Cole.”
17
6. Waters Decl, 2:23-24, “7. On Lacks foundation; no personal knowledge
18
September 19, 2017, Plaintiff sent an (Evidence Code §702); hearsay (Evidence
19 email to Human Resources to Code §1200)
20 respond to her complaint being “not
21 sustained.”
22 7. Waters Decl, 2:24-27, “On Lacks foundation; no personal knowledge
September 21, 2017, the then (Evidence Code §702); hearsay (Evidence
23
Director of Human Resources, Code §1200)
24
Pamela Knorr, responded to
25
Plaintiff’s email and stated she was
26 happy to meet with Plaintiff to
27 discuss Plaintiff’s concerns but given
28
2
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1 that Plaintiff was on stress leave Ms.
2 Knorr requested Plaintiff get a not
3 clearing Plaintiff to meet.”
8. Waters Decl. 2:27-28: “I have Lacks foundation; no personal knowledge
4
reviewed Exhibit GG to the Index of (Evidence Code §702)
5
Exhibits. Exhibit GG is a true and
6
correct copy of the email exchange
7 referenced above.”
8 9. Waters Decl. 3:1-3: “I have reviewed Lacks foundation; no personal knowledge
9 an email sent by now retired (Evidence Code §702)
10 Assistant Chief Greg Lynch dated
February 4, 2016. The email
11
indicates that Plaintiff was scheduled
12
to take over as SPO of the PRCS unit
13 on February 29, 2016.”
14
15
Objections to Exhibit Y to Defendant’s Index of Exhibits
16
17 Material Objected to: Grounds for Objection:
18 1. August 16, 2017, Chuck Lebak to
To the extent that Defendant offers
19 Pamela Knorr, Investigative Report
this document for the truth of the matter
20
asserted therein, itshould be excluded. The
21
investigative report constitutes hearsay and
22 hearsay within hearsay (Evidence Code
23 §1200). It also lacks foundation and any india
24 of trustworthiness. (Evidence Code §702).
25 Defendant did not even attach the entire
26 report, or the recordings; it was bought and
27 paid for by the party facing litigation and
28
3
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1
failed to address Plaintiff’s complaints of
2
discrimination, harassment and retaliation,
3
omitting key allegations. There was no
4
evidentiary hearing. The findings were not
5
supported by even the scant evidence that was
6 collected by the investigator. And Defendant
7 admitted it did not even bother to review the
8 report and underlying evidence. Following
9 the investigation performed by Lebak, Butte
10 County Human Resources made no effort to
11 look into which facts and allegations Lebak
12 investigated, whether the omitted facts and
13 allegations should have been considered, or
14 any of events that took place after his
15 investigation, including discrimination,
16 harassment and retaliation complaints made
17 by Plaintiff. Waters Depo. v.1 108:12-109:9.
18 Defendant admits it would have been
19 reasonable to take such steps, and that it
20 would have been in line with County policy to
do so, but it did not do so. Id. 109:1-110:15.
21
Lebak’s investigation indeed lacked
22
depth. Lynch was not involved in the
23
investigation beyond a single 30-minute
24
interview he had with Lebak. Lynch Depo.
25
32:8-12, 24:2-5. Certain witnesses statements
26
were not recorded, including key witness
27
Chief Bordin, and he never inquired into the
28
4
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1
written communications between Bordin and
2
Lynch or Cole and other documentary
3
evidence. Bordin Depo. 126:20-25. Since
4
that time, Bordin had testified he deleted all
5
text messages and destroyed other evidence
6 relevant to this case. Bordin Depo. 125:21-
7 23.
8
The partial “investigation report” should
9
be strike in its entirety. See Sullivan v.
10 Dollar Tree Stores, Inc., 623 F.3d 770, 778
11 (9th Cir. 2010), the court ruled that even a
12 Department of Labor investigation report
13 was not admissible under Fed. R. Evid.
803(8)(c), because it was not trustworthy.
14
The Ninth Circuit noted that the district court
15
acted within its discretion in rejecting the
16 admissibility of the report as untrustworthy,
17 as the report was incomplete, its exhibits
18 were not attached, and there was no
19 evidentiary hearing for the parties. The
Ninth Circuit further ruled, “[p]ure legal
20
conclusions are not admissible as factual
21
findings. In the context of a summary
22 judgment motion, a conclusion of law by a
23 third-party investigator does not, by itself,
24 create [or eliminate] a genuine issue of
25 material fact for the obvious reason that a
legal conclusion is not a factual statement
26
and for the reasons explained by the
27
Eleventh Circuit.” Id. The Court Sullivan
28
5
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1 ruled:
2 The district court held that the
remainder of the DOL Report, to the
3 extent that it contains factual
findings, is inadmissible as not
4
“trustworthy.” In Beech Aircraft, 488
5 U.S. at 167–68, 109 S.Ct. 439, the
Supreme Court emphasized that,
6 although a broad range of factual
findings are potentially admissible
7 under Rule 803(8)(C), the district
court retains the discretion to exclude
8
findings that are not
9 trustworthy. See id. at 167, 109 S.Ct.
439 (“Thus, a trial judge has the
10 discretion, and indeed the obligation,
to exclude an entire report or portions
11 thereof ... that she determines to be
untrustworthy.”). Relevant factors
12
include “(1) the timeliness of the
13 investigation; (2) the investigator's
skill or experience; (3) whether a
14 hearing was held; and (4) possible
bias when reports are prepared with a
15 view to possible litigation.” Id. at 167
n. 11, 109 S.Ct. 439 (citation
16
omitted). “A party opposing the
17 introduction of a public record bears
the burden of coming forward with
18 enough negative factors to persuade a
court that a report should not be
19 admitted.” Johnson v. City of
20 Pleasanton, 982 F.2d 350, 352 (9th
Cir.1992).
21 Id. The exhibit lacks any hallmark of
22 trustworthiness, timeliness, thoroughness,
there was no hearing, and there are many
23
hallmarks of bias. It must be stricken.
24
25
26
27
28
6
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
1 Respectfully submitted.
Dated: February 18, 2022
2 LAW OFFICES OF WENDY MUSELL
3
______________________________________
4
WENDY MUSELL
5 Attorneys for Plaintiff
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Case No. 18CV02884
Preview
1 Wendy E. Musell, State Bar No. 203507 Brittany Wightman, State Bar No. 341838 2 LAW OFFICES OF WENDY MUSELL 180 Grand Ave. Suite 1300 3 Oakland, CA 94612 2/18/2022 Tel.: (510) 270-2252 4 Fax: (510) 228-1391 Email: wmusell@wendymuselllaw.com 5 Attorney for Plaintiff 6 JULIE COULOMBE 7 IN THE SUPERIOR COURT OF CALIFORNIA 8 IN AND FOR THE COUNTY OF BUTTE 9 10 JULIE COULOMBE ) Case No. 18CV02884 ) 11 Plaintiff, ) ) 12 v. ) ) PLAINTIFF’S OBJECTIONS TO 13 ) DEFENDANT’S EVIDENCE BUTTE COUNTY PROBATION and DOES ) OFFERED RE DEFENDANT’S 14 1-10 inclusive, ) MOTION FOR SUMMARY ) JUDGMENT AND IN THE 15 ) ALTERNATIVE, SUMMARY Defendants. ) ADJUDICATION 16 ) ) Hearing Date: March 4, 2022 17 ) Time: 1:30 PM ) Dept.: 0 18 ) Hon. Molly Bigelow ) 19 ) Complaint Filed: September 4, 2018 ) 20 ) 21 22 23 24 25 26 27 28 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 Objections to Declaration of Sheri Waters 2 3 Material Objected to: Grounds for Objection: 4 1. Waters Decl, 2:6-8, “4. I have Lacks foundation; no personal knowledge 5 reviewed Exhibit A to the Index of (Evidence Code §702) Exhibits. Exhibits A is a true and 6 correct copy of an audio recording 7 that Mr. Lebak provided to the 8 County of his interview with 9 Plaintiff,” 10 2. Waters Decl., 2:11-12, “6. On or Lacks foundation; no personal knowledge 11 about August 16, 2017, Lebak (Evidence Code §702) concluded his investigation and 12 provided the County with a copy of 13 his report. 14 15 3. Waters Decl., 2:12-14, “I have Lacks foundation; no personal knowledge 16 reviewed Exhibit Y to the Index of (Evidence Code §702) 17 Exhibits. Exhibit Y is a true and correct copy of the introduction and 18 conclusion sections of Mr. Lebak’s 19 investigation report with the 20 summaries of interviews of witnesses 21 redacted from the report.” 22 4. Waters Decl., 2:14-16, “Lebak Lacks foundation; no personal knowledge 23 concluded, and the County adopted (Evidence Code §702); hearsay (Evidence 24 the conclusion, that Plaintiff’s Code §1200) complaint of a hostile work 25 environment was “not sustained” 26 because in part:” 27 5. Waters Decl., 2:16-22, “It seems Lacks foundation; no personal knowledge 28 1 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 apparent that Cole is upset with (Evidence Code §702); hearsay (Evidence 2 Coulombe as she took over the job he Code §1200). 3 formerly had supervising a unit. There is no indication that he is upset 4 about this due to Coulombe’s gender. 5 Cole does not work in Coulombe’s 6 unit and it seems there have been no 7 real disruptions by Cole from the 8 time when Coulombe took over 9 supervision of the unit and the weeks or months after until this most recent 10 in July 2017. I do not see where 11 Cole’s actions were pervasive, lasting 12 over a long time, and seriously 13 disrupting the work or interfering 14 with the career progress of 15 Coulombe. Contrary to this the Department picked Coulombe to 16 supervise the unit over Cole.” 17 6. Waters Decl, 2:23-24, “7. On Lacks foundation; no personal knowledge 18 September 19, 2017, Plaintiff sent an (Evidence Code §702); hearsay (Evidence 19 email to Human Resources to Code §1200) 20 respond to her complaint being “not 21 sustained.” 22 7. Waters Decl, 2:24-27, “On Lacks foundation; no personal knowledge September 21, 2017, the then (Evidence Code §702); hearsay (Evidence 23 Director of Human Resources, Code §1200) 24 Pamela Knorr, responded to 25 Plaintiff’s email and stated she was 26 happy to meet with Plaintiff to 27 discuss Plaintiff’s concerns but given 28 2 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 that Plaintiff was on stress leave Ms. 2 Knorr requested Plaintiff get a not 3 clearing Plaintiff to meet.” 8. Waters Decl. 2:27-28: “I have Lacks foundation; no personal knowledge 4 reviewed Exhibit GG to the Index of (Evidence Code §702) 5 Exhibits. Exhibit GG is a true and 6 correct copy of the email exchange 7 referenced above.” 8 9. Waters Decl. 3:1-3: “I have reviewed Lacks foundation; no personal knowledge 9 an email sent by now retired (Evidence Code §702) 10 Assistant Chief Greg Lynch dated February 4, 2016. The email 11 indicates that Plaintiff was scheduled 12 to take over as SPO of the PRCS unit 13 on February 29, 2016.” 14 15 Objections to Exhibit Y to Defendant’s Index of Exhibits 16 17 Material Objected to: Grounds for Objection: 18 1. August 16, 2017, Chuck Lebak to To the extent that Defendant offers 19 Pamela Knorr, Investigative Report this document for the truth of the matter 20 asserted therein, itshould be excluded. The 21 investigative report constitutes hearsay and 22 hearsay within hearsay (Evidence Code 23 §1200). It also lacks foundation and any india 24 of trustworthiness. (Evidence Code §702). 25 Defendant did not even attach the entire 26 report, or the recordings; it was bought and 27 paid for by the party facing litigation and 28 3 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 failed to address Plaintiff’s complaints of 2 discrimination, harassment and retaliation, 3 omitting key allegations. There was no 4 evidentiary hearing. The findings were not 5 supported by even the scant evidence that was 6 collected by the investigator. And Defendant 7 admitted it did not even bother to review the 8 report and underlying evidence. Following 9 the investigation performed by Lebak, Butte 10 County Human Resources made no effort to 11 look into which facts and allegations Lebak 12 investigated, whether the omitted facts and 13 allegations should have been considered, or 14 any of events that took place after his 15 investigation, including discrimination, 16 harassment and retaliation complaints made 17 by Plaintiff. Waters Depo. v.1 108:12-109:9. 18 Defendant admits it would have been 19 reasonable to take such steps, and that it 20 would have been in line with County policy to do so, but it did not do so. Id. 109:1-110:15. 21 Lebak’s investigation indeed lacked 22 depth. Lynch was not involved in the 23 investigation beyond a single 30-minute 24 interview he had with Lebak. Lynch Depo. 25 32:8-12, 24:2-5. Certain witnesses statements 26 were not recorded, including key witness 27 Chief Bordin, and he never inquired into the 28 4 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 written communications between Bordin and 2 Lynch or Cole and other documentary 3 evidence. Bordin Depo. 126:20-25. Since 4 that time, Bordin had testified he deleted all 5 text messages and destroyed other evidence 6 relevant to this case. Bordin Depo. 125:21- 7 23. 8 The partial “investigation report” should 9 be strike in its entirety. See Sullivan v. 10 Dollar Tree Stores, Inc., 623 F.3d 770, 778 11 (9th Cir. 2010), the court ruled that even a 12 Department of Labor investigation report 13 was not admissible under Fed. R. Evid. 803(8)(c), because it was not trustworthy. 14 The Ninth Circuit noted that the district court 15 acted within its discretion in rejecting the 16 admissibility of the report as untrustworthy, 17 as the report was incomplete, its exhibits 18 were not attached, and there was no 19 evidentiary hearing for the parties. The Ninth Circuit further ruled, “[p]ure legal 20 conclusions are not admissible as factual 21 findings. In the context of a summary 22 judgment motion, a conclusion of law by a 23 third-party investigator does not, by itself, 24 create [or eliminate] a genuine issue of 25 material fact for the obvious reason that a legal conclusion is not a factual statement 26 and for the reasons explained by the 27 Eleventh Circuit.” Id. The Court Sullivan 28 5 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 ruled: 2 The district court held that the remainder of the DOL Report, to the 3 extent that it contains factual findings, is inadmissible as not 4 “trustworthy.” In Beech Aircraft, 488 5 U.S. at 167–68, 109 S.Ct. 439, the Supreme Court emphasized that, 6 although a broad range of factual findings are potentially admissible 7 under Rule 803(8)(C), the district court retains the discretion to exclude 8 findings that are not 9 trustworthy. See id. at 167, 109 S.Ct. 439 (“Thus, a trial judge has the 10 discretion, and indeed the obligation, to exclude an entire report or portions 11 thereof ... that she determines to be untrustworthy.”). Relevant factors 12 include “(1) the timeliness of the 13 investigation; (2) the investigator's skill or experience; (3) whether a 14 hearing was held; and (4) possible bias when reports are prepared with a 15 view to possible litigation.” Id. at 167 n. 11, 109 S.Ct. 439 (citation 16 omitted). “A party opposing the 17 introduction of a public record bears the burden of coming forward with 18 enough negative factors to persuade a court that a report should not be 19 admitted.” Johnson v. City of 20 Pleasanton, 982 F.2d 350, 352 (9th Cir.1992). 21 Id. The exhibit lacks any hallmark of 22 trustworthiness, timeliness, thoroughness, there was no hearing, and there are many 23 hallmarks of bias. It must be stricken. 24 25 26 27 28 6 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884 1 Respectfully submitted. Dated: February 18, 2022 2 LAW OFFICES OF WENDY MUSELL 3 ______________________________________ 4 WENDY MUSELL 5 Attorneys for Plaintiff 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE OFFERED RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, SUMMARY ADJUDICATION Case No. 18CV02884