Judge Elaine Lu, Case 19STCV41321 2023-04-06 Tentative Ruling

On November 15, 2019, plaintiff Ida Gomez Llanos (“Plaintiff”) filed the instant action against defendants Delta Air Lines, Inc. (“Delta”), Delta F-Care Retirement Trust, Delta Master Retirement Trust, Jennifer Kao (“Kao”), Pamela Paul (“Paul”), Andrea Misserian (“Misserian”), Barbara Lau (“Lau”), Ann Marie Ognovic (“Ognovic”), Sharon Redden (“Redden”), Jeffrey Weese (“Weese”), and Jake Jesse (“Jesse”). The complaint asserts ten causes of action: (1) Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”)[1], (2) Harassment in Violation of FEHA, (3) Retaliation in Violation of FEHA, (4) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA, (5) Intentional Infliction of Emotional Distress (“IIED”), (6) Negligent Hiring, Supervision, and Retention, (7) Wrongful Termination in Violation of Public Policy, (8) Whistle-Blower Retaliation in Violation of Labor Code § 1102.5, (9) Breach of Express Oral Contract Not to Terminate Employment without Good Cause, and (10) Breach of Implied-in-Fact Contract Not to Terminate Employment without Good Cause.[2]

On September 21, 2021, Plaintiff filed a stipulation to dismiss defendants Delta F-Care Retirement Trust and Delta Master Retirement Trust without prejudice and to dismiss defendants Andrea Misserian, Jeffrey Weese and Jake Jesse with prejudice. On July 6, 2022, Plaintiff orally moved to dismiss Ann Marie Ognovic from the complaint, which the Court granted. (Minute Order 7/6/22.)

On March 14, 2023, Defendants Delta, Kao, Paul, Lau, and Redden (collectively “Defendants”) filed the instant motion to compel Plaintiff’s further deposition pursuant to Code of Civil Procedure section 2025.450. On March 23, 2023, Plaintiff filed an opposition. On March 29, 2023, Defendants filed a reply.

Plaintiff has been an outstanding flight attendant at Delta throughout her 56 years of employment, receiving numerous awards. (Complaint ¶¶ 11-12.) Plaintiff was Delta’s number one flight attendant in Los Angeles and fifth in the company at age 78. (Id. ¶ 14(a).) As the most senior flight attendant, Plaintiff earned coveted work-related privileges that other employees coveted, such as the first right to choose her flight routes and to take on additional flights for extra work hours. (Id. ¶ 14(b).) This in turn created resentment by other flight attendants who would falsify reports to management, which Delta encouraged and welcomed in order to justify the termination of senior flight attendants. (Id. ¶¶ 14(b-c).)

On February 5, 2018, Plaintiff was issued her first write-up in 55 years, for alleged policy violations based on two incidents on September 17, 2017 and November 23, 2017. (Id. ¶ 14(e).) The first incident arose out of an accusation by a coworker (Richard Hamrich) that Plaintiff paid another flight attendant (Kimberly Reicks) $100.00 “to reach tall bins while working at the galley.” (Id. ¶ 14(f).) This allegation was not true. Reicks did assist Plaintiff, but Plaintiff did not pay Reicks $100.00. (Ibid.) Moreover, Hamrich made this accusation after Plaintiff witnessed him “sexually assault another male flight attendant by grabbing the other flight attendant’s crotch.” (Ibid.) Hamrich later recanted this accusation and directly apologized for the false accusation. (Ibid.) Plaintiff’s manager Misserian assured Plaintiff that Defendants would remove the write-up from Plaintiff’s file, but Defendants failed to do so. (Ibid.)

“The second incident, in the February 5, 2018 write-up, alleged that [Plaintiff] failed to work at her designated position on November 23, 2017.” (Id. ¶ 14(g).) This allegation was also untrue. “[Plaintiff] refused to sign the write-up because of the numerous fabrications therein.” (Ibid.)

The February 5, 2018 write-up damaged Plaintiff’s employment. For 18 months, “[Plaintiff] became ineligible for transfer, promotion, or special assignment outside in-flight services and ineligible to participate in the purser program.” (Id. ¶ 14(h).)

“On February 9, 2018, [Plaintiff] again received a positive review for her excellent work ethic, customer service, and adherence to company policy.” (Id. ¶ 14(j).) Shortly after the positive review on February 9, 2018, younger flight attendants including defendants Kao, Lau, and Ognovic treated Plaintiff negatively and aggressively. (Id. ¶ 14(k).) “On several occasions, these defendants verbally harassed [Plaintiff] by screaming at her in front of passengers. A co-worker informed [Plaintiff] that defendant Ognovic announced to other flight attendants, ‘I [defendant Ognovic] am trying to get her [Plaintiff] fired any way I can!’ Additionally, defendant Kao had expressed the same sentiment to another flight attendant, saying she was ‘trying to get her [Plaintiff] fired.’ In furtherance of their plan, defendants Ognovic and Kao claimed that [Plaintiff] could not arm and/or disarm doors, maliciously imputing such alleged incapacity to her age and sex. Moreover, defendant Ognovic circulated pictures of [Plaintiff] in another attempt to defame her. [Plaintiff] had no issues with performing her tasks and received rave performance reviews throughout her tenure at Delta.” (Id. ¶ 14(l).)

Defendants Kao, Lau and Ognovic also spread rumors “that [Plaintiff] had stolen items from aircrafts for personal use (repeatedly made by Kao, Lau and Ognovic from 2017 to the time of termination), that she was stealing chocolate, that she was eating food before serving passengers (a false statement made by Kao in or around late 2018), that she was stopped by U.S. customs agents who discovered the stolen items and that she was suspended for two weeks for stealing (Ognovic made this false accusation in or around 2018 of which was untrue). Another employee of Delta (name unknown at this time) also falsely stated that [Plaintiff] put Bailey’s Irish Cream in her coffee during a flight (this occurred in or around 2018).” (Id. ¶ 14(m).)

Plaintiff requested that defendant Ognovic stop spreading these rumors. In response “Ognovic pulled out pictures she had of [Plaintiff] with her head down as an intimidation tactic, demanding that [Plaintiff] ‘back off!’” (Id. ¶ 14(o).) Plaintiff complained about the numerous rumors to the in-flight manager and the base manager, who did nothing. (Ibid.)

“On April 11, 2018, [Plaintiff] lodged a written complaint with defendants’ manager Ann Johnson, recounting the bullying and slander she had endured thus far from defendants.” (Id. ¶ 14(p).) In response, “[o]n April 29, 2018, [Plaintiff] received an informal oral coaching warning for purportedly ‘creating crew conflict with gossiping.’” (Id. ¶ 14(q).)

“[D] efendants Kao and Lau continued to target [Plaintiff] with malicious conduct, including spreading rumors that she often stopped service to passengers so she could eat herself, all the while circulating old pictures of [Plaintiff] on flights.” (Id. ¶ 14(s).)

On May 8, 2018, Plaintiff filed another written report about harassment and bullying by co-workers. Specifically, “flight attendant defendant Redden, with whom [Plaintiff] had no history, unforeseeably verbally abused [Plaintiff] with such hostility that another flight attendant could not understand how [Plaintiff] was able to remain so calm during the attack.” (Id. ¶ 14(t).) Plaintiff reasonably believed that these unwarranted attacks stemmed from other flight attendants’ resentment of Plaintiff for the privileges that accompanied her age and seniority. Plaintiff’s complaint was again ignored. (Ibid.)

“On June 1, 2018, [Plaintiff] received an unfounded disciplinary action for purportedly removing catering items from the aircraft.” (Id. ¶ 14(u).) During a three-day international flight, on September 28, 2018, defendant Kao verbally harassed Plaintiff by “hostilely screaming at [Plaintiff] without provocation.” (Id. ¶ 14(w).) Upon returning to the U.S., defendant Kao filed a false complaint against Plaintiff. (Ibid.) A week later, defendant Kao assaulted Plaintiff “by throwing a large bag full of covers directly at her head.” (Id. ¶ 14(x).)

On October 23, 2018, Plaintiff was singled out to receive an informal oral coaching compliance warning for failing to adhere to the bag and room policy. (Id. ¶ 14(y).) On January 22, 2019, Plaintiff was written up for alleged “unprofessional interactions with a crew member” for the conduct during the September 28, 2018 flight. (Id. ¶ 14(z).) “When presented with this write-up, defendants did not consult [Plaintiff] to hear her side of the story.” (Ibid.) Rather, these defendants readily took the falsely made accusation as true. (Ibid.) Due to this write-up, Plaintiff was placed on a three-year period of probation. (Id. ¶ 14(aa).) At a meeting regarding the write up, Plaintiff’s manager at the time (Anne Johnson) read the write-up to Plaintiff, and Weese “just remained silent, assenting to Ms. Johnson’s write up and Kao’s complaints.” (Ibid.)

During a flight on March 13, 2019, Plaintiff was pulled away from completing her customs form to retrieve another glass of wine for a passenger. (Id. ¶ 14(bb).) Unbeknownst to Plaintiff, during this flight, the flight attendant defendants “intentionally placed Delta food products near her bag and took pictures to create the artificial impression that [Plaintiff] was stealing from the company.” (Id. ¶ 14(cc).) While Plaintiff was retrieving the glass of wine for the passenger, “a large plastic bin flew out of the chiller and hit [Plaintiff] on the forehead, causing her head to swell and leaving her dazed.” (Id. ¶ 14(bb).) Plaintiff attended to her injury and served her passenger. In filling out the customs form, Plaintiff “had inadvertently made a mistake on the form by failing to mark ‘yes’ under ‘animal products’ when she was rushing to serve the passenger and complete the form after the injury to her forehead[.]” (Id. ¶ 14(dd).) Upon arrival, Plaintiff was chosen for a random customs check during which Plaintiff orally corrected the error on her customs form by orally declaring that she had brought a small carton of milk. (Id. ¶ 14(dd).) Plaintiff had purchased the small carton of milk prior to the flight and had not taken the milk from the aircraft. Despite her oral declaration, Plaintiff was fined as “[a]pparently, the milk [Plaintiff] purchased was not sufficiently marked with the country of origin and, unlike defendant Delta’s catering items, would not be allowed through customs.” (Ibid.)

On April 15, 2019, Plaintiff was pulled into a meeting with Weese and a field service manager about this customs incident. (Id. ¶ 14(ee).) When interrogated during this meeting, Plaintiff admitted that she had taken the milk from the plane. Previously, Misserian had advised Plaintiff that she would not get into trouble for taking milk off a plane, but that it might look bad. (Id. ¶ 14(ee).) Management ignored the fact that Plaintiff bought her own milk and pegged her as a thief and a liar. (Id. ¶ 14(ee).)

Later that day, Plaintiff “approached [] Misserian on April 15, 2019 to ask why she was being reprimanded for allegedly taking milk off the plane when Misserian had advised her that this was not a disciplinary offence.” (Id. ¶ 14(ff).) Misserian then lied and denied ever saying such a thing. (Ibid.)

The following day, on April 16, 2019, Plaintiff was summoned to a meeting with field service manager defendant Jesse, base director Weese, and another field service manager (Mark Liv). (Id. ¶ 14(gg).) “During this meeting, [Plaintiff] corrected her previous statement that she had taken milk off the aircraft by honestly stating that she had purchased the milk at a supermarket prior to her flight. Defendants refused to believe her because of alleged inconsistencies and even accused her of stealing nine (9) bowls of cereal provided for the flight.” (Ibid.) Defendant Paul had falsely accused Plaintiff of taking nine cereal bowls from the flight and milk from storage, falsely stating that “she [defendant Pamela] asked her [plaintiff] to take it out of her bag but she [plaintiff] refused.” (Ibid.) However, the individual in charge had confirmed that they were in fact short of these catered items at the beginning of the flight. (Ibid.) Plaintiff informed defendants that the accusations were false. However, defendants framed her complaints as diversions and ignored them. (Id. ¶ 14(hh).) At the end of the meeting, defendants informed Plaintiff that she was suspended without providing her with a reason for the suspension. (Id. ¶ 14(ii).)

On April 19, 2019, Plaintiff called Jesse to reiterate her complaints of harassment and of the false accusations against her. Jesse characterized Plaintiff’s complaints as a distraction. (Id. ¶ 14(kk).) Plaintiff sent multiple written reports detailing the false accusations against her on April 20, 2019, April 22, 2019, and April 23, 2019. (Id. ¶¶ 14(ll, nn, pp).) Plaintiff also forwarded an email from Misserian to demonstrate that Misserian had told her to just take milk off the plane. (Id. ¶¶ 14(kk, mm).)

“On April 22, 2019, defendants privately reached the decision to compel Ms. Gomez’s resignation and, if she refused, to terminate her employment.” (Id. ¶ 14(oo).) On April 26, 2019, another flight attendant confirmed that Plaintiff had not taken milk from the aircraft as all items were accounted for, but Defendants ignored this information. (Id. ¶ 14(qq).) “To make matters worse, defendants, and each of them, started spreading malicious rumors about the incident to the detriment of plaintiff’s reputation.” (Id. ¶¶ 14(rr).)

“On April 30, 2019, defendants submitted a summary of their investigation “falsely determined that [Plaintiff] stole two cartons of milk, two (or nine) of ten (or 12) bowls of cereal, two (or three) bags of chocolates, yogurt, all of the espresso, and an entire pizza, all during a single flight.” (Id. ¶¶14(ss).) Despite the absence of evidence, defendants decided that “after a spotless 56 years, Ms. Gomez had suddenly transformed into a thief who needed to be fired.” (Ibid.)

On May 8, 2019, Plaintiff sent a written complaint of this ongoing harassment to Goswani Rajan of Delta, which was ignored. (Id. ¶¶ 14(tt-uu).) “On May 23, 2019, defendants issued an ultimatum to [Plaintiff]: retire, or suffer employment termination and the loss of her pension.” (Id. ¶ 14(vv).) “On May 29, 2019, [Plaintiff] lodged another written complaint, asking if the decision to terminate her employment were because of her age.” (Id. ¶ 14 (ww).) On June 6, 2019, Plaintiff was fired. (Id. ¶ 14(xx).) “As a result of the sudden and wrongful termination of her employment, [Plaintiff] has suffered and continues to suffer severe emotional distress, including emotional distress, anxiety, and mental suffering.” (Id. ¶ 14(zz).)

Defendants seek to compel Plaintiff’s further deposition. Plaintiff has already been deposed four separate times. (Zilifyan Decl. ¶ 9.)

In general, “a natural person may be deposed only once during the run of the litigation.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 254; CCP § 2025.610(a).) However, “for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (CCP § 2025.610(b).)
Thus, Defendants are not entitled to any further deposition. Rather, on good cause the Court has the discretion to grant leave for further deposition. Here, there is good cause warranting further deposition of Plaintiff.

On January 2, 2023, Plaintiff’s Counsel informed Defendants that Plaintiff intended to call Daniel Henderson, Esq. – the lead attorney handling the instant action for the past three years – as a witness during trial. (Cho Decl. ¶¶ 3-4.) “On January 3, 2023, when Defendants requested a proffer for Mr. Henderson’s testimony at trial, Plaintiff’s counsel represented that Mr. Henderson’s ‘testimony will concern communications with Ms. Gomez related to the text messages, i.e., preparation with Ms. Gomez for the defense mental exam in June.’” (Cho Decl. ¶ 5.) On January 4, 2023, Plaintiff was deposed for the fourth time. (Zilifyan Decl. ¶ 9; Cho Decl. ¶ 6, Exh. B.) On January 20, 2023, Defendants conducted a deposition of Henderson. (Cho Decl. ¶ 9, Exh. E.)

“The next court day after Daniel Henderson’s deposition, Defendants raised with the Court the potential conflict of interest issue. At a subsequent hearing on January 24, 2023, counsel for Plaintiff denied that any conflict existed, and he refused to confirm to the Court or Defendants whether Plaintiff signed a written waiver. On January 26, 2023, the Parties appeared before this Court a third time on this issue, to discuss the briefing schedule for Defendants’ Motion to Disqualify and Motion to Compel Mr. Henderson’s further deposition. The Court, again, asked counsel whether Plaintiff signed a written waiver. This time, counsel for Plaintiff responded by stating he was “not authorized” to share that information. Thereafter, the Court directed that the parties should gather relevant facts regarding the conflict of interest prior to filing the Motion to Disqualify.” (Cho Decl. ¶ 10, Exh. F; see also Minute Orders 1/23/23, 1/24/23, 1/26/23.)

On February 17, 2023, for the first time in opposition to a pending motion to compel Henderson’s further deposition testimony – which the Court granted (Order 3/13/23) – Plaintiff provided a Client Consent Form that is electronically signed in December of 2022 and that authorizes Henderson to testify. (Cho Decl. ¶ 11, Exh. G.) Defendants contend that further deposition testimony is necessary for Defendants’ intended motion to disqualify as to whether Plaintiff’s waiver was knowing and intelligent especially given that there is some medical evidence that Plaintiff may be cognitively impaired. (See Choi 8/2/22 Decl. ¶ 9, Exh. B.) As the client waiver form was not produced until after Plaintiff’s most recent deposition, Defendants could not have inquired about the client waiver at Plaintiff’s prior depositions. Thus, there is good cause for a limited further deposition.

In opposition, Plaintiff argue that Defendants do not have standing to challenge any conflict issues, that Plaintiff has already testified four separate times, and that this deposition is purely to harass Plaintiff. The Court disagrees.

First, Defendants clearly have standing to bring a motion for disqualification – regardless of whether such motion may or may not be granted.

It makes no sense for a court to stand idly by and permit conflicted counsel to participate in a case merely because neither a client nor former client has brought a motion. As one court put it, “Protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney.” (Meza, supra, 176 Cal.App.4th at p. 980, 98 Cal.Rptr.3d 422.) “[T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them.” (In re A.C. (2000) 80 Cal.App.4th 994, 1001, 96 Cal.Rptr.2d 79, italics added.) Accordingly, we conclude that where an attorney's continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel.

The potential for a counsel testifying at trial without valid consent of the client is clearly a matter that would undermine the integrity of the judicial process. Thus, Defendants would be permitted to bring a motion to disqualify on such grounds.

As to the claim that this fifth deposition is purely to harass Plaintiff, the Court disagrees. Plaintiff designated Henderson as a witness very late in the litigation and did not provide the client consent form until after Plaintiff’s most recent deposition. The Court finds that the instant motion is not purely to harass Plaintiff. However, given that Plaintiff has been deposed for numerous hours in the instant action, any further deposition must be reasonably limited to two hours.

Based on the foregoing, Defendant Delta Airlines, Inc., Jennifer Kao, Pamela Paul Barbara Lau, and Sharon Redden’s motion to compel Plaintiff Ida Gomez Llanos further deposition is GRANTED. Plaintiff may be deposed for two hours regarding the issues raised in the moving papers.

[1] On August 10, 2022, the Court granted Defendant Delta’s motion for summary adjudication as to the claim for sexual discrimination. (Order 8/10/22.)

[2] The complaint alleges liability against the eight individual defendants only as to the second and fifth causes of action.

Superior Court of California

County of Los Angeles

Department 26