Judge: John C. Gastelum, Case: 20-01125066, Date: 2023-03-27 Tentative Ruling

1) Motion for Summary Judgment and/or SAI (2) Motion to Compel Deposition (Oral or Written)

 

Tentative Ruling: (1) Defendants’, Getac, Inc. and Getac Technology Corporation, Motion for Summary Judgment or alternatively Summary Adjudication is DENIED.

 

This Motion is treated as one for Summary Judgment only.  When summary adjudication is requested, the language of the Notice as to each issue must be issue must be repeated verbatim in the Separate Statement, as required by CRC Rule 3.1350(b).  This was not done either with the original Notice and Separate Statement or the Amended Notice and Separate Statement filed on March 09, 2022.

 

Defendants have not met their burden of showing that one or more elements of plaintiff Shainman’s 2nd cause of action for Labor Code section 1102.5 cannot be established.  (Code Civ. Proc., §437c(p)(2).)  They have not shown that he cannot prove that he engaged in “protected activity” as defined by the statute.

 

Further, they have not met their affirmative burden to show by clear and convincing evidence that he would have been discharged regardless of the protected activity.  (Lab. Code, §1102.6; Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) 

         

Even if defendant had met his burden, triable issues of material fact have been shown with respect to the 2nd cause of action.  (Plaintiff’s additional Material Facts, Nos. 77, 82, 84, 86 – 114.) Further, defendants themselves have raised triable issues of material fact by the filing of their Responses to Plaintiff’s Undisputed Material Facts.  There is no statute, rule or case law authorizing a Response Separate Statement to an Opposition.  Indeed, case law is to the contrary.  (See, Nazier v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)  By saying the facts are immaterial and characterizing Opposition evidence, defendants have themselves raised triable issues of fact. 

That the Response Separate Statement is unauthorized does not prevent the Court from considering it for its effect. The Court is entitled to take defendants at their word that there are disputed material facts, and will do so.

 

The Parties’ Objections

 

Plaintiff’s Objections to Evidence in Support of Motion of the Motion for Summary Judgment

 

Rick Hwang:  Objections 1 – 24 are OVERRULED.

 

Mika Turner:  Objections 1 – 31 are OVERRULED.

 

James Turner: Objections 1 - 4 are OVERRULED.

 

Andy Lin:  Objections 1 – 10 are OVERRULED.

 

 

 

Defendants’ Objections to Supplemental Evidence filed in Support of Opposition

 

The Court declines to rule on the objections because the evidence objected to was not material to the disposition of this Motion.  (Code Civ. Proc., §437c (q).)        

 

The parties’ Requests for Judicial Notice are GRANTED extent of the existence of the documents, but not of the truth of statement in them or their proper interpretation.  (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97.)

 

The trial date of March 27, 2023 remains.

 

(2) Motion to Compel Deposition (Oral or Written)

 

Tentative Ruling: (2) Motion to Compel Deposition (Oral

or Written) is continued – date to be determined.