Judge: Elaine Lu, Case: 19STCV39852, Date: 2022-10-24 Tentative Ruling

Case Number: 19STCV39852    Hearing Date: October 24, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On November 5, 2019, Plaintiff Joundi White (“Plaintiff”) filed the instant wrongful termination action.  On January 14, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants Kiewit Power Constructors Co. (“Kiewit”), Access Pacific, Inc. (“AP”), and Operating Engineers Training Trust (“OETT”) (collectively “Defendants”).  The SAC asserts ten causes of action for: (1) Discrimination on the Bases of Gender, Gender Identity, Gender Expression, Sexual Orientation, and Race in Violation of the Fair Employment and Housing Act (“FEHA”); (2) Harassment on the Bases of Gender, Gender Identity, Gender Expression, Sexual Orientation, and Race in Violation of FEHA; (3) Retaliation for complaining of discrimination and/or harassment in Violation of FEHA; (4) Failure to Prevent Discrimination, Harassment and Retaliation, (5) Breach of express oral contract not to terminate employment without good cause; (6) Breach of implied-in-fact contract not to terminate employment without good cause; (7) Negligent hiring, supervision, and retention; (8) Wrongful Termination in Violation of Public Policy; (9) Violation of Labor Code §1102.5; and (10) Intentional Infliction of Emotional Distress.

On March 21, 2022, Defendant OETT filed the instant motion to sever.  On October 11, 2022, Plaintiff filed an opposition.  On October 17, 2022, Defendant OETT filed a reply.

Allegations of the Operative Complaint

            The SAC alleges as follows:

            Plaintiff is an African-American transgender male.  (SAC ¶ 16.)  Beginning on August 7, 2015, OETT employed Plaintiff as an apprentice within OETT’s apprentice program.  (SAC ¶ 13.)  OETT dispatched Plaintiff to work for Defendant AP beginning in November 2017 as an EQO Operator Apprentice.   (SAC ¶ 14.)  On December 20, 2017, OETT dispatched Plaintiff to work for Defendant Kiewit as an EQO Operator Apprentice.  (SAC ¶ 15.)

            “On the first day of Plaintiff’s orientation at OETT, Apprentice Coordinator Dan Cox described something as being ‘extremely gay.’”  (SAC ¶ 19.)  “Sometime during the Spring months of 2016, during multiple training sessions, OETT instructor John Sharon referred to disciplinary hearings as ‘lynchings.’”  (SAC ¶ 20.) 

“During the Summer of 2017, at a jobsite to which Plaintiff was dispatched by OETT, several white and Latino male Union members (who were supposed to be supervising and training Plaintiffs) would call Plaintiff ‘baby’ and inappropriately touch Plaintiff's lower back near his buttocks. The foreman, who was also a union member, even went so far as to brandish at Plaintiff a dirty double ended dildo, which he referred to as his ‘good luck charm.’ Plaintiff reported all of these incidents to OETT's Business Agent Mickey Totten and Apprentice Coordinator Ron Edwards, but neither took any steps to reprimand the offenders or protect Plaintiff from further harassment.”  (SAC ¶ 21.)  “During April of 2018, while participating in training programming at Defendant OETT's training site, Plaintiff was referred to as a ‘chick with dick’ and ‘faggot ass bitch’ in the presence of OETT Supervisor Alan Stolze.”  (SAC ¶ 22.)

“In approximately November of 2017, Plaintiff was dispatched by Defendant OETT to a jobsite maintained by AP. On Plaintiff’s second day at the AP jobsite, Plaintiff found a dildo. A few days later, Plaintiff again found the dildo, which had been moved closer to where Plaintiff was working that day. Plaintiff reported this to OETT and AP. Plaintiff was instructed to and did take a picture of the dildo. Neither Defendant AP nor Defendant OETT took any steps to prevent further harassment.”  (SAC ¶ 23.)  On December 13, 2017, someone at the AP jobsite referred to Plaintiff as “mayate” a Spanish racial slang word.  (SAC ¶ 24.)  Plaintiff reported this, but no action was taken.  (SAC ¶ 24.)  In retaliation Plaintiff was removed from the AP jobsite that evening.  (SAC ¶ 25.)

“On or around December 20, 2017, Plaintiff was dispatched by Defendant OETT to a jobsite maintained by Defendant Kiewit.”  (SAC ¶ 26.)  “On or around December 21, 2017, at the Kiewit jobsite, Plaintiff was called a ‘Slave Driver’ by Rob Ceideburg, a Caucasian male crane operator under whom Plaintiff apprenticed.”  (SAC ¶ 27.)  “On or around January 3, 2018, Mr. Ceideburg, uttered the term ‘Nigga’ in Plaintiff’s presence.”  (SAC ¶ 28.)  “On or around February 27, 2018, Mr. Ceideburg pointed to a rainbow in the sky and asked those around him, including Plaintiff, ‘which one of you is a faggot?’”  (SAC ¶ 29.) 

            “On or around March 16, 2018, Mr. Ceideburg recounted to Plaintiff a story during which he used the term ‘chicks with dicks’[.]”  (SAC ¶ 30.)  “On or around April 20, 2018, Plaintiff offered Mr. Ceideburg a popsicle. Mr. Ceideburg responded by telling Plaintiff it was a giant tampon.”  (SAC ¶ 31.)

            “On or around April 26, 2018, Plaintiff notified Kiewit foreman Matt Koepp that his immediate supervisor, Mr. Ceideburg, was treating him poorly. On April 27, 2018, Plaintiff again notified Mr. Koepp of Mr. Ceideburg’s inappropriate behavior. In response, Mr. Koepp flippantly suggested that Plaintiff have sex with Mr. Ceideburg.”  (SAC ¶ 32.)

“On or around May 8, 2018, Plaintiff notified OETT's Business Agent Mickey Totten of Mr. Ceideburg’s inappropriate behavior. Mr. Totten responded by instructing Plaintiff not to complain about anything race-related.”  (SAC ¶ 33.)  “On or around May 11, 2018, OETT's Apprenticeship Coordinator Ron Edwards called Plaintiff and informed him that his supervisors had complained about Plaintiff’s bad attitude. Plaintiff understood this to mean he was being reprimanded for complaining about Mr. Ceideburg’s inappropriate behavior.”  (SAC ¶ 34.)

“On or around May 18, 2018, Plaintiff informed Kiewit Superintendent Mike Bryant of Mr. Ceideburg’s racist and homophobic behavior.”  (SAC ¶ 35.)  On June 19, 2018, Plaintiff was notified by Mr. Totten of OETT that Plaintiff was going to be terminated from Kiewit.  (SAC ¶ 36.)  On June 20, 2018, Kiewit terminated Plaintiff without a union representative present in violation of union policy.  (SAC ¶ 37.)

On August 16, 2018, “Plaintiff submitted a letter to Marty Collins of OETT regarding the harassment and discrimination experienced by Plaintiff.”  (SAC ¶ 38.)  That same day on August 16, 2018, “OETT placed Plaintiff on probation from the apprenticeship program.”  (SAC ¶ 38.)  On April 11, 2019, Plaintiff was constructively terminated from OETT and sent OETT a letter of resignation.  (SAC ¶ 42.) 

Legal Standard

            “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”  (CCP § 1048(b).)  Further, “[t]he trial court has broad authority to sever the trials of properly joined parties ‘as the interests of justice may require.’ (Code Civ. Proc., § 379.5.)”  (Pilliod v. Monsanto Company (2021) 67 Cal.App.5th 591, 625.)

            “Under these provisions, trial courts have broad discretion to determine the order of proof in the interests of judicial economy.”  (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.)

Discussion

            Defendant OETT seeks to sever trial of Plaintiff’s claims against Defendants OETT and Kiewit.  Defendant OETT claims that a severance of Plaintiff’s claims against Defendant OETT and Defendant Kiewitt is warranted because (1) OETT will suffer prejudice if the trial is not severed, (2) severance would be convenient for the witnesses, and (3) separate trials against each defendant would promote economy.

            Claimed Prejudice

            Defendant OETT claims that it will suffer prejudice due to “evidence that will mislead a jury and detract from the central issue of OETT's alleged liability. Moreover, evidence and testimony by Plaintiff and Kiewit's employees regarding conduct that allegedly occurred at Kiewit's premises or by Kiewit's employees is nothing more than Plaintiff's attempt to garner sympathy and provoke the jury.”  (Motion at p.4:21-25.)  However, the mere fact that there are two defendants is insufficient to show prejudice requiring two separate trials.  As such claims can be directly addressed by making clear through jury instructions that in deciding the Plaintiff’s claim against one defendant, the jury could not consider the evidence that applied to only the other.  (Pilliod v. Monsanto Company (2021) 67 Cal.App.5th 591, 626; see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803 [“Absent some contrary indication in the record, we presume the jury follows its instruction”].)

Moreover, the authority cited by Defendant OETT does not support the proposition that merely having a second defendant engaged in separate conduct in the same trial creates sufficient prejudice to warrant two separate trials.  For example, in Bhaya v. Westinghouse Elec. Corp. (3d Cir. 1990) 922 F.2d 184, the Third Circuit noted that “[e]vidence that a party committed wrongs other than those at issue in a case often creates a danger of ‘unfair prejudice’ because such evidence may influence a jury to return a verdict based on a desire to punish for the other wrongs.”  (Id. at p.188.)  However, the evidence referred to consisted of out-of-court statements admitting to unrelated wrongful conduct by the defendant.  (Id. at p.186.)  Not evidence relating to a separate defendant.  Similarly, Lowenthal v. Mortimer (1954) 125 Cal.App.2d 636, the other case relied upon by Defendant OETT, involved prejudice of bringing up numerous unrelated lawsuits instigated by the plaintiffs on cross-examination.  (Id. at pp.640-642.)  Neither of these cases suggests that prejudice results merely from a joint trial of two defendants who engaged in separate but related conduct.

            Defendant OETT fails to provide any authority or basis to conclude that having multiple defendants in an action is automatically prejudicial.  Further, Defendant OETT fails to provide any evidence that having a single trial in the instant action would likely prejudice the jury against OETT.

            Claimed Convenience to the Witnesses

            Defendant OETT’s Counsel claim that the allegations against OETT require a two-day trial at most – in contrast to the currently expected seven-to-ten-day trial.  (Wunderlich Decl. ¶ 8.)   OETT’s Counsel anticipates that the direct and cross-examination of Plaintiff will take three hours and that the direct and cross-examination of OETT employees, Alan Stolze, Ron Edwards, and Larry Hopkins will take one hour each.  (Wunderlich Decl. ¶ 8.)

            In opposition, Plaintiff asserts that if trial were severed, multiple witness would need to testify multiple times, including Plaintiff.  For example, Ron Edwards would need to testify twice over issues including “OETT’s apprenticeship program in general, the requirements for an apprenticeship to advance in the program, OETT’s and Local 12’s dispatching of apprentices to worksites, including Kiewit’s; Edward’s role in dispatching Plaintiff to the Kiewit worksite; Edward’s duty to investigate complaints of discrimination at contractor worksites such as Kiewit; Edward’s investigation of Plaintiff’s reports that discrimination was occurring at the Kiewit worksite; Edward’s communications with apprentices via cell phone while apprentices are at the worksite.”  (Lyman Decl. ¶ 2.)  While Defendant OETT claims that this testimony would be unnecessary because in deposition “Plaintiff did not testify that he complained to Edwards about Kiewit’s employees Rob Ciedeburg or Joshua Sizemore[,]” (Tavlian Decl. ¶ 5), this does not address the other purported reasons for Edward’s need to testify in both actions.  Thus, given that multiple witnesses would need to testify at both action, the claim for convenience of the witnesses is unsupported.

            Separate Trials will Not Promote Economy

            Defendant OETT contends that having separate trials would promote economy because OETT’s Counsel estimates an additional 21 hours would need to be spent on issues not relating to OETT’s alleged liability.  (Wunderlich Decl. ¶ 7.)  However, this ignores the significant time that would be needed to empanel two juries.  Moreover, this ignores the time that would need to be spent reestablishing elements such as Plaintiff’s protected status.  Further, given the Court’s impacted schedule, there would likely be significant delay by conducting two separate trials, needlessly increasing costs to all parties.

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Operating Engineers Training Trust’s motion to sever is DENIED.

Moving Party is to give notice and file proof of service of such.

DATED: October 24, 2022                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court