Judge: Mel Red Recana, Case: 22STCV02650, Date: 2024-04-25 Tentative Ruling
Case Number: 22STCV02650 Hearing Date: April 25, 2024 Dept: 45
Hearing date: April 25, 2024
Moving Party: Defendants Chef on Fire, LLC and Eugena Weng
Responding Party: Plaintiff David Wu
Defendant’s Motion for Summary Judgment or in the Alternative, Summary Adjudication
The Court considered the moving papers, opposition, and reply. Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication is GRANTED in part and DENIED in part. The Motion is granted as to the eleventh, twelfth, thirteenth, sixteenth, and seventeenth causes of action as against Chef on Fire, LLC. The Motion is denied as to the first, second third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and fourteenth causes of action as against Chef on Fire, LLC. The Motion is granted in its entirety solely as to Eugena Weng.
I. Background & Preliminary Matters
Procedural History
On January 21, 2022, David Wu (Plaintiff) filed a Complaint alleging several violations of the California Labor Code and the Fair Employment and Housing Act (FEHA) against his former employer Chef On Fire, LLC (COF) and a manager Eugena Weng (Weng, collectively, Defendants). A First Amended Complaint (FAC) was filed on March 22, 2022 alleging the following seventeen causes of action:
1. Retaliation in Violation of Cal. Lab. Code § 1102.5;
2. Disability Discrimination in Violation of FEHA;
3. Failure to Accommodate in Violation of FEHA;
4. Failure to Engage in Interactive Process;
5. Retaliation in Violation of FEHA;
6. Age Discrimination in Violation of FEHA;
7. Failure to Prevent in Violation of FEHA;
8. CFRA Violation;
9. CFRA Retaliation;
10. Wrongful Termination in Violation of Public Policy;
11. Failure to Pay Wages for All Hours Worked;
12. Failure to Provide Duty-free Meal and Rest Breaks;
13. Failure to Provide Accurate Wage Statements;
14. Waiting Time Penalties;
15. Failure to Permit Inspection or Copying of Records;
16. Violation of Cal. Lab. Code § 6310;
17. Violation of Cal. Lab. Code § 6311.
The motion now before the Court is Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication (the Motion). Plaintiff opposes the Motion, Defendant files a reply, Plaintiff then files a sur-reply objecting to evidence filed by Defendant upon reply.
Factual Background
Plaintiff alleges that he was wrongfully terminated from his employment on June 20, 2021. (FAC, ¶¶ 15, 18.) Plaintiff alleges that the wrongful termination was because he requested reasonable accommodations due to an injury and other medical issues he suffered. (FAC, ¶ 15.) Plaintiff additionally alleges that after notifying Defendants of these injuries and providing a doctor’s note, Defendants required him to return to work without any rest, denying any assistance from other employees, and verbally berating him. (FAC, ¶ 16.) Prior to being terminated, Plaintiff alleges that he engaged in various protected activities including seeking protection under the California Family Rights Act and FEHA. (Id.) As a result, Plaintiff alleges that Defendants engaged in retaliatory conduct which ended in Plaintiff’s termination (Id.) Plaintiff now files suit.
Requests for Judicial Notice
Both parties request this Court grant judicial notice. First, COF requests that the Court grant judicial notice as to the following:
(1) The decision rendered by the Administrative Law Judge from the California Unemployment Insurance Appeals Board, Case No. 7141631
(2) The decision rendered by the Appeals Board for the California Unemployment Insurance Appeals Board, Case No. AO-462909 (addressing the appeal of Case No. 7141631.)
(3) Amended Complaint to the California Department of Fair Employment and Housing
(4) Plaintiff’s Notice of Case Closure and Right to Sue Letter from the Department of Fair Employment and Housing
(5) Employment Development Department’s Appeal Form
(6) Plaintiff’s Worker’s Compensation Application Form
(7) First Amended Complaint
Pursuant to Evid. Code §§ 452(c) & 452(d), COF’s request for judicial notice is granted only as to items three, four, and seven. Pursuant to Cal. Unemp. Ins. Code §§ 1094 and 1960, items one, two, five, and six are prohibited from being deemed admissible as evidence. Plaintiff requests that we take judicial notice of the following:
(1) The fact that June 8, 2021 was a Tuesday
(2) The minimum wage rates and subsequent increases in California from 2019 to 2021
Pursuant to Evid. Code §§ 452 and 453, judicial notice is granted as to both of Plaintiff’s items.
Evidentiary Objections
Plaintiff files two evidentiary objections, the first to COF’s separate statement which was filed with COF’s moving papers, and the second objection is to new evidence COF presents in their reply papers. Both objections are sustained. The objection to COF’s separate statement is sustained in its entirety, and the concurrent request to strike the statement is granted because COF failed to file the separate statement in conformity with Cal. Rules of Court 3.150(d)(1), (d)(2), (d)(3), and (h). The second evidentiary objection is sustained because COF brings the new evidence only upon reply and gives Plaintiff no opportunity to respond. “[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive respondent of an opportunity to counter the argument. [Citations.]” (Jay v. Mahaffey (2013) 128 Cal.App.4th 1522, 1538.) This is the situation presented before the Court here, therefore, the Court will disregard all new arguments and any evidence COF puts forth upon reply.
COF filed objections on April 18, 2024, two days after the prior scheduled hearing for this Motion, and seven days before the current hearing for this Motion on April 25, 2024. Per Cal. Rules of Court 3.1354, unless otherwise authorized by the Court on a showing of good cause, all written objections to evidence in support of a motion for summary judgment must be served and filed at the same time as the objecting party’s opposition or reply papers. COF as the objecting party filed their reply papers on April 11, 2024, and requested no permission from the Court nor made any showing of good cause with regard to their late-filed objections. Therefore, the objections will not be considered.
II. Discussion
Legal Standard
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Analysis
A. Preliminary Arguments
i. Plaintiff David Wu held a managerial position
The first preliminary argument the parties set forth is whether Plaintiff was a manager who held a salaried position and is therefore exempt from overtime and meal break regulations. The evidence presented by both parties shows the answer is yes. (Declaration of Steven Hoang, ¶ 7; Declaration of David Wu; Exhibit 32, Supplemental Responses to Special Interrogatories, ¶ 1-2; Exhibit 43, and Deposition of Eugena Weng pgs. 20 and 26.)
ii. No Causes of Action are alleged against Eugena Weng
Within the FAC, there is no single cause of action alleged at or identifying Eugena Weng as the subject individual. COF requests that the Motion be granted as to Eugena. Plaintiff opposes arguing that because no issue was raised on the pleadings regarding Weng, that the Court may not grant summary judgment. However, Plaintiff provides no authority for this assertion. The standard upon summary judgment is clear, the defendant must carry their burden to show no issue of a triable material fact, plaintiff must then show that a triable issue exists. COF has carried their burden as to Weng, Plaintiff failed to demonstrate theirs. Therefore, the Motion is granted as to Weng, and this order shall only address Defendant COF.
iii. Plaintiff provides triable issue of fact as to whether he was terminated
The parties final preliminary contention is whether Plaintiff quit or was terminated. COF claims that Plaintiff quit by not showing up to his workplace, however, Plaintiff’s declaration provides a detailed account to the contrary. Plaintiff communicated to both Jackson Weng and Eugena Weng that the job duties he was assigned upon return from leave violated his medically prescribed restrictions. (Declaration of David Wu, hereinafter, Wu Decl., ¶ 25.) One day, Plaintiff informed Eugena Weng that he was not feeling well and asked for the rest of the day off. Plaintiff states that Eugena Weng’s response was to berate him and to shout “Don’t come back ever.” (Exhibit 46, Deposition of David Wu, pg. 37, lines 11-22.) Here, Plaintiff has created a triable issue of material fact as to whether he quit or was terminated. Therefore, the Motion is denied as to the tenth cause of action for wrongful termination.
B. Merits
i. First and Fifth Causes of Action: Retaliation in Violation of Cal. Lab. Code § 1102.5 and Retaliation in Violation of FEHA.
California Labor Code § 1102.5 (LAB § 1102.5) is a provision of California’s Labor Code which prevents retaliation for employees conducting protected activity, including reporting or disclosing information to a government or law enforcement agency. To establish a prima facie case of retaliation under Cal. Lab. Code § 1102.5, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) plaintiff’s employer thereafter subjected him to an adverse employment action; and (3) a causal link between the two. (Fitzgerald v. El Dorado County (2015) 94 F.Supp.3d 1155, 1172.) To establish a prima facie case of retaliation under FEHA, a plaintiff needs to plead the same elements. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)
COF argues that this cause of action fails “Plaintiff never pled that Defendants had a policy rule or regulation that prohibited him from making a complaint to a government or law enforcement agency.” (Moving Papers, 6:12-16.) COF goes on to argue that because Plaintiff was a manager who was required to make sure the signs were posted, Plaintiff’s cause of actions somehow fail. The Court disagrees. First, the only authority cited in the moving papers addressing the first and fifth causes of action is a non-binding case from the Florida Southern District Court that makes no mention of workplace retaliation.
Second, Plaintiff demonstrates that there are triable issues of material fact as to whether retaliation occurred. Plaintiff submits their own declaration alleging and documenting instances of workplace retaliation. (See Wu Decl.) COF provides no response nor evidence showing no triable issue of fact as to whether retaliation took place. Therefore, the Motion is denied as to both the first and fifth causes of action.
ii. FEHA and CFRA Causes of Action – Second, Third, Fourth, Sixth,
Seventh, Eighth, and Ninth Causes of Action
Here, the Court will deny the Motion as to the second, third, fourth, sixth, seventh, eighth, and ninth causes of action. Each of these causes of action is prefaced on the same facts and share similar elements. Plaintiff is alleging discrimination under FEHA based on age and disability, failure on the part of COF to accommodate, to engage in the interactive process, and failure to prevent discrimination. Additionally, Plaintiff alleges violations under the California Family Rights Act (CFRA) after COF retaliated against Plaintiff and failed to inform him of his right for leave under the CFRA and by forcing him to take longer leave than necessary.
On May 3, 2021, Plaintiff alleges that he suffered an injury to his hand and arm after a fall. (FAC, ¶ 16.) Plaintiff provided reasonable notice to his employer, COF, and after his release from medical treatment, Plaintiff alleges that COF would not allow him to return to work forcing him to take additional time off. (Id.) Although a follow up visit later revealed Plaintiff needed more time off, when Plaintiff was permitted to return to work by his doctor, COF refused to provide accommodations. (Id.) Moreover, Plaintiff alleges that COF denied Plaintiff help from other employees, berated him, accused him of faking the medical issues, reprimanded him for not being able to lift heavy boxes, and told him he was “old” and “slow”. (Id.) Plaintiff provides the Wu Decl. which supports these allegations; however, COF fails to carry their burden.
COF argues that because Plaintiff did not withstand a “life altering injury” that Plaintiff is somehow not eligible for protection under either FEHA or the CFRA. To be clear, the injuries suffered after Plaintiff’s fall were to his hand (Exh. 24) and it was later discovered that Plaintiff suffered from a hernia (Exh. 23 & 24.) A prima facie case of disability discrimination under Fair Employment and Housing Act (FEHA) requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.)
FEHA defines the term “physical disability” as having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: “(a) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine” and (b) “Limits a major life activity.” (Govt. Code § 12926(m).)
Moreover, the code defines how any such injury must affect the individual in order to be considered a disability, for example it must limit a major life activity, major life activities include working. (Govt. Code § 12926(m)(iii).)
COF cites no case law that requires Plaintiff to suffer a “life altering injury” under FEHA, nor does COF present evidence demonstrating no triable issue of fact as to the second cause of action for disability discrimination in violation of FEHA. The Motion is denied as to the second cause of action.
As to the third cause of action, COF alleges in their moving papers that Plaintiff signed an “Accommodation Agreement” and purports that the agreement is attached as Exhibit G, however, the Court has no such exhibit within COF’s filings. Nor does COF purport that they provided any sort of accommodation for Plaintiff nor engaged in an interactive process to resolve the issues. Plaintiff, however, has put forth evidence that no accommodation was provided nor was any effort put forth in the process to find a solution. (See generally, Wu Decl.) The Motion is denied as to the third and fourth causes of action.
With regard to both the sixth and seventh causes of action, age discrimination and failure to prevent the violation under FEHA, plaintiff must show that plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.) At the time of hiring, Plaintiff was 56 (Exh. 24 for DOB). There is no indication by COF that Plaintiff’s services were anything less than satisfactory, and yet after requesting accommodations he suffered an adverse employment action, being terminated. However, Plaintiff alleges that it was not only due to his request for accommodations, but also his age, Plaintiff alleges that he was called “old” more than once. (FAC, ¶ 16.) This is sufficient to give rise to an inference of unlawful discrimination. Here, COF again has failed to carry its burden, the Motion is Denied as to the sixth and seventh causes of action.
As the discussion above demonstrates that COF failed to carry their burden as to the CFRA violations alleged, the Motion is denied as to the eighth and ninth causes of action as well.
iii. Because Plaintiff was a salaried worker holding a manager position, Plaintiff was considered exempt from LAB §§ 1194, 226(a), & 226.7
As aforementioned, Plaintiff was hired as a supervisor, and later became a manager. (Exh. 32, COF Supplemental Response to Special Interrogatories.) Plaintiff filled out daily logs to indicate whether workers competed their tasks (Wu Decl., pg. 2, lines 1-3), ordered inventory for the restaurant (Id. at lines 7-8), and was paid a salary. (Exh. 29, pg. 4, line 16.) Therefore, Plaintiff was exempt from Cal. Lab. Codes §§ 1194 (failure to pay wages); 226(a) (wage statement); and 226.7 (meal breaks). Accordingly, the Motion is granted as to causes of action eleven, twelve, and thirteen.
iv. Plaintiff never received his final paycheck; therefore, COF is liable for violations under LAB §§ 201 and 203
Cal. Lab. Code § 201 (LAB § 201) provides that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. Cal. Lab. Code § 203 (LAB 203) provides that if an employer willfully fails to pay the wages of an employee who is discharged or quits the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.
Here, the allegations are that the final check to Plaintiff was never provided, COF argues the contrary through their moving papers and the Declaration of Eugena Weng (¶ 3), however, no other proof is provided such as proof of mailing. Plaintiff, through their own declaration contends that he never received his final check. (Wu Decl., ¶ 36.) Accordingly, with no proof demonstrating that that is no triable issue of fact as to whether Plaintiff received his final paycheck, the Motion is denied as to the fourteenth cause of action.
v. COF failed to respond to the request for personnel file in violation of LAB § 226(c)
Cal. Lab. Code § 226(c) provides that an employer who receives a written or oral request to inspect or receive a copy of records pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. The parties agree that Plaintiff requested his personnel file, however, COF argues that because the request was sent to their agent for service of process, and because the agent for service of process was not legally obliged to provide the letter to COF, no request was ever properly sent and received. This is true of a prior request that landed in the hands of an employee who worked in the same building but had no relation to COF. However, the agent for service of process could have easily notified COF of the request. A registered agent or an “agent for service of process” is an individual appointed by the LLC to receive crucial legal documents on its behalf. COF provides no authority showing that their “agent for service of process” could not have simply turned over the file request to COF to be processed. Here, COF failed to demonstrate the absence of a triable issue of fact, therefore, the Motion will be denied as to the fifteenth cause of action.
vi. Plaintiff fails to demonstrate that there were safety issues at his place of employment, therefore the sixteenth and seventeenth causes of action fail
For both the sixteenth and seventeenth causes of action, COF argues that Plaintiff never raised any concerns with regard to the safety in the workplace. Within their opposition papers and accompanying filings, Plaintiff does not provide evidence that concerns regarding workplace safety were ever raised or existed. Here, Plaintiff fails to show a triable issue of material fact, therefore, the Motion as to the sixteenth and seventeenth causes of action is granted.
III. Conclusion
Accordingly, Defendants’ Motion for Summary Judgment or in the Alternative, Summary Adjudication is GRANTED in part and DENIED in part. The Motion is granted as to the eleventh, twelfth, thirteenth, sixteenth, and seventeenth causes of action as against Chef on Fire, LLC. The Motion is denied as to the first, second third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and fourteenth causes of action as against Chef on Fire, LLC. The Motion is granted in its entirety solely as to Eugena Weng.
It is so ordered.
Dated: April 25, 2024
_______________________
Rolf M. Treu
Judge of the Superior Court
Hearing
date: April
25, 2024
Moving
Party: Plaintiff
David Wu
Responding
Party: Defendants
Chef on Fire, LLC and Eugena Weng
Plaintiff David
Wu’s Motion for Sanctions Pursuant to Code Civ. Proc., § 128.7
The Court
considered the moving papers, opposition, and reply. Plaintiff David Wu’s Motion for Sanctions Pursuant to Code Civ. Proc., §
128.7 is GRANTED and sanctions are imposed on Defendants and
their attorney or record, in the amount of $2,000.00, jointly and
severally to be paid within 10 days of this order.
I.
Background
Procedural History
On
January 21, 2022, David Wu (Plaintiff) filed a Complaint alleging several
violations of the California Labor Code and the Fair Employment and Housing Act
(FEHA) against his former employer Chef On Fire, LLC (COF) and a manager Eugena
Weng (Weng, collectively, Defendants). A First Amended Complaint (FAC) was
filed on March 22, 2022 alleging the following seventeen causes of action:
1.
Retaliation in Violation of Cal. Lab. Code § 1102.5;
2.
Disability Discrimination in Violation of FEHA;
3.
Failure to Accommodate in Violation of FEHA;
4.
Failure to Engage in Interactive Process;
5.
Retaliation in Violation of FEHA;
6.
Age Discrimination in Violation of FEHA;
7.
Failure to Prevent in Violation of FEHA;
8.
CFRA Violation;
9.
CFRA Retaliation;
10.
Wrongful Termination in Violation of Public Policy;
11.
Failure to Pay Wages for All Hours Worked;
12.
Failure to Provide Duty-free Meal and Rest Breaks;
13.
Failure to Provide Accurate Wage Statements;
14.
Waiting Time Penalties;
15.
Failure to Permit Inspection or Copying of Records;
16.
Violation of Cal. Lab. Code § 6310;
17.
Violation of Cal. Lab. Code § 6311.
The motion now before the
Court is Plaintiff David Wu’s Motion for Sanctions Pursuant to Code Civ. Proc.,
§ 128.7 (the Motion). Both COF and Weng oppose the Motion, Plaintiff files a
reply.
Factual Background
Plaintiff
alleges that he was wrongfully terminated from his employment on June 20, 2021.
(FAC, ¶¶ 15, 18.) Plaintiff alleges that the wrongful termination was because
he requested reasonable accommodations due to an injury and other medical
issues he suffered. (FAC, ¶ 15.) Plaintiff additionally alleges that after
notifying Defendants of these injuries and providing a doctor’s note,
Defendants required him to return to work without any rest, denying any
assistance from other employees, and verbally berating him. (FAC, ¶ 16.) Prior
to being terminated, Plaintiff alleges that he engaged in various protected
activities including seeking protection under the California Family Rights Act
and FEHA. (Id.) As a result, Plaintiff alleges that Defendants engaged
in retaliatory conduct which ended in Plaintiff’s termination (Id.)
Plaintiff now files suit.
II.
Discussion
Legal Standard
Code
of Civil Procedure “section 128.7 applies solely to attorney misconduct in the
filing or advocacy of groundless claims made in signed pleadings and other
papers.” (Clark v. Optical Coating
Lab. (2008) 165 Cal.App.4th 150, 164.) A violation of any of the conditions
of Section 128.7(b) (which includes (1) improper purpose, (2) frivolous claims, defenses or
contentions, (3) lack of evidentiary support or likely support and (4) lack of
evidentiary support or reasonable bases on lack of information as to denials),
may support an award of sanctions. (Eichenbaum
v. Alon (2003) 106 Cal. App. 4th 967, 976.)
Whether a claim, defense or contention is
frivolous is measured objectively. (Bockrath v. Aldrich Chem. Co. (1999)
21 Cal.4th 71, 82.) Code of Civil Procedure Section 128.7 requires
bad faith conduct by the person to be sanctioned. (Interstate Specialty
Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 710 [“attaching
the wrong draft of a contract … to a … complaint does not appear to be, under
the particular circumstances of this case …, sanctionable at all…. Only
lamentable inattention was shown ….”].)
Analysis
Plaintiff
files the instant Motion arguing that the use of the Employment Development
Department (EDD) Appeals Board decisions within the motion for summary judgment
filed by Defendants was improper, and that Defendants should be sanctioned in
the amount of $8,700.00 jointly and severally. Defendants primary counter
argument is that the statute Plaintiff relies on is unconstitutional. It is
unclear from Defendants opposition whether Defendants are referring to Code Civ. Proc., § 128.7 itself or Cal. Unemp. Ins
Code § 1960, the section of the unemployment insurance code that prohibits the
use of the EDD Appeals Board decisions. Nonetheless, the Court agrees with
Plaintiff and grants the Motion, and imposes $2,000.00 in sanctions against
Defendants, and awards them to Plaintiff.
Constitutionality
Defendants
primary argument is that either Code Civ. Proc., §
128.7 itself or Cal. Unemp. Ins Code § 1960 is
unconstitutional. Without clearly stating which statute is unconstitutional,
the Court reviews both and finds that neither is currently subject to a
constitutional challenge. Defendants fail to put forth authority that demonstrates
the contrary. Defendants refer specifically to the Federal Rules of Evidence
stating that “as it pertains to the admissibility of certain types of evidence
in federal courts such evidence is governed by the Federal Rules of Evidence.” (Opposition
Papers, 3:8-10.) However, this case is in the Superior Court of the State of
California within the County of Los Angeles, not federal court. Here, the
applicable evidence code is the California Evidence Code.
Plaintiff
notes in their moving papers that they notified Defense counsel several times
in regard to the impermissibility of filing evidence that was clearly prohibited.
(Declaration of Kelly Chen, ¶¶ 3-6.) Defense counsel ignored these warnings and
proceeded to utilize the forbidden evidence in their summary judgment motion. It
should be noted that the Court refused the request for judicial notice as to
the EDD Appeals Board decisions and does not reference them in its decision on
Defendants’ summary judgment motion.
Upon
opposition, Defense counsel provides no argument as to why this evidence,
clearly prohibited, was filed with their motion for summary judgment. It is
clear that the filing was no accident. Civ. Proc. Code 128.7(c)(1) provides for
a 21-day “safe harbor” period in which Defendants, after given proper notice –
as they were here – are permitted to withdraw or correct the challenged filing.
Defendants failed to do so.
III.
Conclusion
Accordingly, Plaintiff David Wu’s Motion for Sanctions Pursuant to Code Civ. Proc., §
128.7 is GRANTED and sanctions are imposed on Defendants and
their attorney or record, in the amount of $2,000.00, jointly and severally to
be paid within 10 days of this order.
It
is so ordered.
Dated: April 25, 2024
_______________________
Rolf M. Treu
Judge of the
Superior Court