Judge: Christopher K. Lui, Case: 19STCV30856, Date: 2022-09-13 Tentative Ruling
Case Number: 19STCV30856 Hearing Date: September 13, 2022 Dept: 76
RULINGS ON MOTIONS IN LIMINE
Defense Motions in Limine No. 1-3
These motions deal with Defendant’s request that the Court
bar Plaintiff from presenting evidence of post-termination medical episodes and
post-termination of medical diagnoses. Defendant
argues that this evidence is irrelevant and that it should be excluded under
Evidence Code section 352 because of the potential for undue prejudice that
would result from admission. Defendant
argues that the key issue in this case is the extent to which Defendant had
notice of Plaintiff’s alleged disability and/or symptoms before terminating her. Plaintiff argues that the evidence at issue
in these motions should be admitted because proof of a disability is an
essential element of Plaintiff’s claims, and the evidence of post-termination
medical episodes and the post-termination diagnosis explains the symptoms that
Plaintiff experienced and reported before her termination.
Plaintiff argues that termination of Plaintiff because of “‘mannerisms’
or symptoms of her disability is a per se violation of the FEHA.” (Opp. at 8.)
In support of this argument, Plaintiff cites federal cases including
Humphrey v. Memorial Hospitals Ass’n (9th Cir. 2001) 239 F.3d 1128, and
McInteer v. Ashley Distrib. Svcs, Ltd. (2014) 40 F.Supp.3d 1269. However, these cases are distinguishable from
the instant case. For example, in
Humphrey, the Ninth Circuit stated that for an ADA unlawful discharge claim,
conduct resulting from a disability is considered to be part of the disability,
not a separate basis for termination. (Humphrey,
239 F.3d at 1139-40.) The Humprey court
likened the facts of that case to Kimbro v. Atlantic Richfield Co. (9th Cir. 1990)
889 F.2d 869, another ADA case.
(Humprey, 239 F.3d at 1139-40 (“In Kimbro, for example, we found that
there was a sufficient causal connection between the employee's disability and
termination where the employee was discharged for excessive absenteeism caused
by migraine-related absence.”).)
Distinct from the 9th Circuit’s ADA analysis in Kimbro and
Humphrey (and assuming the ADA analogy is relevant), the instant case is not one
where conduct related to a disability was cited by Defendant as a reason for
disability. Defendant’s stated rationale
for the termination is a violation of a drug-free workplace policy, rather than
secondary effects of any symptoms. Moreover,
the FEHA analysis by the Court of Appeal in cases cited by Defendant, including
Brundage v. Hahn (1997) 57 Cal.App.4th 228, notes that ADA decisions provide
useful gap-filler authority where there is no controlling state law. (Brundage, 57 Cal.App.4th at 235.) The ADA defines a disability as “a physical
or mental impairment that substantially limits one or more of the major life
activities” of the plaintiff (Brundage, 57 Cal.App.4th at 235 (quoting 42
U.S.C. § 12102(A).) FEHA applies a broader
definition of disability in discrimination cases:
An actual or existing disability is not necessary. The FEHA
defines “disability” to include: (1) “[h]aving a record or history of a
disease, disorder, condition, cosmetic disfigurement, anatomical loss, or
health impairment [that constitutes a physical disability], which is known to
the employer”; (2) “[b]eing regarded or treated by the employer ... as having,
or having had, any physical condition that makes achievement of a major life
activity difficult”; or (3) “[b]eing regarded or treated by the employer ... as
having, or having had, a disease, disorder, condition, cosmetic disfigurement,
anatomical loss, or health impairment that has no present disabling effect but
may become a physical disability.” (§ 12926, subd. (k)(3)-(5).)
(Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 345.) Under this broader FEHA definition, the focus
should be on the symptoms that Plaintiff experienced prior to her termination,
and the extent to which they may have been communicated to decisionmakers. A post-termination diagnosis explaining the
cause of Plaintiff’s symptoms is irrelevant to the nature of the pre-termination
symptoms.
The Court finds that this evidence is not relevant to the claims
in the case. Moreover, the potential for
jury confusion and potential prejudice substantially outweighs any probative
value that this evidence might carry.
The motions are GRANTED.
Defense Motion in Limine No. 4
This motion deals with Plaintiff’s reporting of sexual
assaults or sexual harassment by Defendant’s other employees. Defendant seeks to have the evidence excluded
as prejudicial pursuant to Evidence Code section 352. Plaintiff asserts that this evidence explains
Plaintiff’s unwillingness to work with Defendant’s Human Resources staff, as
the reports were not acted upon in a serious manner, and the fact that
Defendant did not take corrective action exacerbated the symptoms of
Plaintiff’s disability. The Court finds
that evidence regarding sexual assaults or sexual harassment in this case,
where there are no sexual harassment claims proceeding to trial, has a
substantial risk of inflaming the passions of jurors that outweighs any
probative value that the evidence might have.
The motion is GRANTED.
Defense Motion in Limine No. 5.
This motion deals with evidence concerning Plaintiff’s
disclosure to a supervisor (Benton) of symptoms such as migraines and
insomnia. Defendant seeks to have the
evidence excluded on the grounds that there is no evidence that Benton reported
Plaintiff’s complaints to others, and that Benton was not among Defendant’s
employees who made the decision to terminate Plaintiff.
As the Court noted in its ruling on Defendant’s motion for
summary adjudication, knowledge of a corporate officer within the scope of
their duties may be imputed to the corporation.
Thus, even in the absence of evidence that Benton communicated
Plaintiff’s complaints to others, evidence that Plaintiff discussed her
symptoms with Benton is admissible.
The motion is DENIED.
Defense Motion in Limine No. 6
This motion seeks to exclude evidence regarding “bullying”
conduct by Plaintiff’s co-worker Karineh Moradian. Defendant argues that this evidence is
irrelevant because there is no harassment claim remaining in the case. Plaintiff argues that Moradian made comments
regarding Plaintiff’s symptoms, falsely attributing the conduct to drug use,
and that these comments were reported up the chain of command. Plaintiff contends that evidence at trial
will prove that these comments were reported to decisionmakers.
To the extent that Plaintiff complained to Defendant’s
management about Moradian’s conduct and no action was taken to correct or
prevent the circulation of rumors, this evidence is at least arguably relevant
to Defendant’s pre-termination notice of Plaintiff’s symptoms. The evidence is not so inherently prejudicial
as to merit exclusion under Evidence Code section 352.
The motion is DENIED.
Defense Motion in Limine No. 7
This motion is directed at precluding Plaintiff from making
statements (whether in argument or through testimony) that Defendant “almost
killed” Plaintiff. Such arguments or
statements by witnesses are inherently inflammatory and conclusory and as a
result are improper.
This motion is GRANTED.
Defense Motion in Limine No. 8
This motion in limine seeks bifurcation of the punitive
damages claim and wealth evidence. The
motion was not opposed by Plaintiff. The
motion is GRANTED.
Defense Motion in Limine No. 9
This motion seeks exclusion of evidence relating to causes
of action disposed of by the Court’s ruling on summary adjudication. The motion is not directed at specific items
of evidence, and the Court notes that evidence that supported a summarily
adjudicated claim may also relate to surviving causes of action. This motion is DENIED WITHOUT PREJUDICE to
any specific relevance objections that may be made at trial.
Defense Motion in Limine No. 10 (Tentative ruling)
This motion seeks to exclude expert witness opinions not
disclosed at deposition—in essence, it is a pre-testimony Kennemur motion that
does not identify specific objectionable topics. Since there are no offending anticipated
opinions identified in the motion, the Court cannot grant the motion in advance
of testimony. The motion is DENIED WITHOUT PREJUDICE to objections that may be
made at the time of testimony.
Defense Motion in Limine No. 11 (Tentative ruling)
This motion seeks to exclude evidence not disclosed in
discovery. Without knowing the specific
items of evidence that are at issue, and the reasons for nondisclosure, the
Court is not in a position to rule on any specific items of evidence. The motion is DENIED WITHOUT PREJUDICE to
objections that may be made at the time of trial.
Defense Motion in Limine No. 12
This motion seeks to exclude evidence of other lawsuits
involving Defendant. Defendant argues
that such evidence is excludable on the grounds of both relevance and potential
undue prejudice under Evidence Code section 352. Plaintiff argues that the evidence would be
admissible under Evidence Code section 1101(b) to prove Defendant’s knowledge
and/or pattern and practice
Defendant has not identified any specific testimony or
specific past litigation that is the subject of this motion, and Plaintiff’s
opposition does not make any offer of proof as to what evidence would be
offered pursuant to Evidence Code section 1101(b) to show knowledge or pattern
and practice.
The motion is DENIED WITHOUT PREJUDICE to objections that
may be made at the time of trial.
However, the Court is mindful of the powerful potential for prejudice
that such evidence may have, and that this would be a difficult bell to
unring. As a result, the Court orders
that if Plaintiff seeks to admit evidence concerning other litigation,
Plaintiff must first raise the issue with the Court by making an offer of proof
identifying (1) the witness who will testify about such past litigation, (2)
the witness’ basis for personal knowledge, (3) the name of the case and
jurisdiction in which the case was adjudicated, (4) the identity of the
defendants in that prior case, and (5) the date that a final judgment was
entered against the defendant in such prior litigation.
Plaintiff’s Motion in Limine No. 1 and 2
These motions concern a Quest Diagnostics report dated
January 7, 2019 regarding a drug analysis of a urine sample taken from
Plaintiff. To the extent that a proper
foundation for the report can be laid and either a nonhearsay basis for admission
is presented or a hearsay exception established, the document may be
admitted. The Court finds that to the
extent the report is otherwise admissible, its probative value is not
substantially outweighed by the possibility of undue prejudice pursuant to
Evidence Code section 352.
Plaintiff’s Motion in Limine No. 3
This motion seeks to exclude evidence of a post-termination
incident in which Plaintiff experienced a medical emergency on December 24,
2019 on the grounds that the evidence is irrelevant and raises a risk of undue
prejudice pursuant to Evidence Code section 352. Defendant opposes this motion conditionally
on the grounds that this evidence is part of the material that is subject to
Defendant’s motion in limine no. 1. The
Court is granting Defendant’s motion in limine no. 1, and accordingly is
judicially estopped from offering testimony about the December 24, 2019
incident.
Consistent with the Court’s ruling on Defendant’s motion in
limine no. 1, this motion is GRANTED and no reference may be made to
Plaintiff’s December 24, 2019 medical incident.
Plaintiff’s Motion in Limine No. 4
This motion seeks to exclude evidence regarding Defendant’s
potential affirmative defenses of failure to mitigate or avoidance of
consequences. Specifically, the report
is directed at testimony of Defendant’s vocational expert, Behnush Mortimer,
regarding these defenses. Plaintiff
contends that Mortimer’s report does not contain essential information that
would support an opinion on Plaintiff’s failure to mitigate damages. Defendant opposes this motion contending that
it is an improperly disguised motion for summary adjudication of an affirmative
defense, that it produced evidence regarding these defenses during discovery,
and that since Plaintiff did not take the deposition of Dr. Mortimer, Plaintiff
cannot assert any factual basis to complain about Dr. Mortimer’s opinions.
The Court agrees with Defendant that a wholesale exclusion
of any affirmative defenses based on a supposed failure to produce evidence
during discovery is essentially a summary adjudication of those defenses, which
would require full statutory notice and briefing per Code of Civil Procedure
section 437c. The motion is DENIED.