Judge: Robert B. Broadbelt, Case: 19STCV32649, Date: 2024-11-21 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV32649    Hearing Date: November 21, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Defendants Walmart Inc., Wal-Mart Associates, Inc., Abel R. Alvidrez, and Conrad Schaefer        

RESPONDING PARTY:       Plaintiff Carl Mueller

(1)   Ex Parte Application to Strike Plaintiff’s Response to Separate Statement

(2)   Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

EX PARTE APPLICATION TO STRIKE SEPARATE STATEMENT

Defendants Walmart Inc., Wal-Mart Associates, Inc., Abel R. Alvidrez, and Conrad Schaefer (“Defendants”) move the court for an order striking the response separate statement filed by plaintiff Carl Mueller (“Plaintiff”) in support of his opposition to Defendants’ pending motion for summary judgment or, in the alternative, summary adjudication.

The court finds that Plaintiff’s separate statement does not comply with Code of Civil Procedure section 437c and therefore grants Defendants’ ex parte application to strike his response separate statement.  (Code Civ. Proc., § 436, subd. (b) [court may strike any pleading not drawn or filed in conformity with the laws of this state].)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. . . .  Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.  Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”  (Code Civ. Proc., § 437c, subd. (b)(3).)  “‘The separate statement serves two important functions in a summary judgment proceeding:  It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’”  (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875 [internal citation omitted].)  “The opposing party’s responses to the separate statement must be in good faith, responsive, and material.  Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit.  It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.”  (Ibid.)

As a threshold matter, the court notes that Defendants have taken issue with the length of Plaintiff’s response separate statement, which amounts to 783 pages.  The court notes that many facts are repeated, and Defendants’ own separate statement was 119 pages with 401 material facts.  (Beltran, supra, 97 Cal.App.5th at p. 874-875 [finding that the separate statements, which included over 600 paragraphs and over 100 pages, were not convenient or expeditious].)  While the court believes that it is likely that both of the separate statements submitted in connection with the pending motion for summary judgment or adjudication could have been more concise, the court takes issue with the content of Plaintiff’s responses, and not necessarily the length.[1]

Based on its review of Defendants’ ex parte application, Plaintiff’s opposition to the ex parte application, and Plaintiff’s response separate statement, the court finds that many of Plaintiff’s responses were not made in good faith and were not responsive because the responses (1) cited dozens of exhibits, many of which were not responsive or supportive of Plaintiff’s assertions, or (2) were not responsive to the fact stated. (Beltran, supra, 97 Cal.App.5th at p. 876; Cal. Rules of Ct., rule 3.1350, subd. (f)(2) [if a fact is disputed, the party must “describe the evidence that supports the position that the fact is controverted”].)

For example, in response to material fact number 6, Plaintiff “disputed” that fact and cited a total of 29 exhibits in support of the dispute.  (Pl. Sep. Statement, pp. 4:24-7:16.)  However, Plaintiff’s response to this fact is not completely responsive, and the evidence cited in support of the disputed fact does not support his assertion.  Specifically, Defendants’ fact number 6 states the following:  “In February 2016, Cody Rodgers, the Asset Protection Manager of Store 5134, complained to Abel Alvidrez and Christ Fulmer that [Plaintiff] was not working very many hours in Store 5134 and was not involved with store operations.”  (Pl. Sep. Statement, pp. 4:24-5:5.)  Plaintiff responded by stating “Disputed as to [Plaintiff] not being involved with store operations[,]” and providing further arguments and assertions regarding the Defendants’ written reason for “coaching” Plaintiff.  (Id., p. 4:24-5:17.)  The court finds that this is not responsive because (1) fact number 6 does not state that Plaintiff was or was not involved with store operations, but rather states that Cody Rodgers made such a complaint, such that Plaintiff’s disputing that he was not involved with store operations is not responsive; (2) the narrative response regarding Defendants’ written purpose of the “coaching” of Plaintiff is irrelevant and does not concern the complaint that is the subject of this material fact; and (3) the narrative response and argument regarding that fact are improper since separate statements must only include material facts. 

Moreover, Plaintiff cited 29 exhibits[2] in support of his response to this statement.  The court has reviewed the first three citations to evidence and has determined that none of the evidence supports Plaintiff’s attempt to dispute this material fact.  First, the deposition testimony of Conrad Schaefer on pages 432:10-442:12 concerns the responsibilities of an asset protection manager and does not concern whether Cody Rodgers made the subject complaint about Plaintiff.  (Pl. Sep. Statement, p. 5:24-25; Webster Decl., Ex. B, Schaefer Dep., pp. 432:10-442:12.)  Second, the deposition testimony of Conrad Schaefer on page 446:10-19 concerns the third level written coaching that was provided to Plaintiff, which does not concern whether Cody Rodgers made the subject complaint about Plaintiff.  (Pl. Sep. Statement, p. 5:25; Webster Decl., Ex. B, Schaefer Dep., p. 446:10-19.)  Third, the deposition testimony of Conrad Schaefer on page 448:10-13 concerns testimony regarding whether some individuals sometimes receive elevated coaching, which does not concern whether Cody Rodgers made the subject complaint about Plaintiff.  (Pl. Sep. Statement, p. 5:25; Webster Decl., Ex. B, Schaefer Dep., p. 448:10-13.)  Thus, this response does not adequately reference supporting evidence, and the court is not required to search for such responsive evidence buried within the 29 citations to exhibits.  (Code Civ. Proc., § 437c, subd. (b)(3); Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 891-892 [“‘where evidence is not referenced, is hidden in voluminous papers, and is not called to the attention of the court at all, a summary judgment should not be reversed on grounds the court should have considered such evidence’”] [emphasis added].)

Further, in response to fact number 7, Plaintiff disputed that fact and, in support, cited 29 exhibits.  (Pl. Sep. Statement, pp. 7:17-10:6.)  However, the first three citations are in reference to evidence that are in no way related to the content of this fact.  (Pl. Sep. Statement, p. 8:8-10 [citing Exhibit B, pp. 432:10-442:12, 446:10-19, 448:10-13]; Webster Decl., Ex. B, pp. 432:10-442:12 [citing testimony setting forth responsibilities of asset protection manager], 446:10-19 [testimony regarding the third level written coaching provided to Plaintiff], 448:10-13 [discussing elevated coaching].)  

As to material fact number 18, which states that “[p]ursuant to Walmart’s Discipline policy, any additional coaching issued to an employee who is already at the third written warning step, triggers termination[,]” Plaintiff disputed that fact by “[d]isputing that [Plaintiff] should have been on his third level of coaching.”  (Pl. Sep. Statement, p. 23:21-25.)  Plaintiff’s response is completely nonresponsive to Defendants’ material fact, which concerns Walmart’s discipline policy, and not Plaintiff’s level of coaching.  (Ibid.) 

Plaintiff’s responses to material fact numbers 32, 139, and 140 are similarly nonresponsive to the content of the material facts.  (Pl. Sep. Statement, pp. 44:15-23 [disputing Fact No. 32 that “On August 2, 2017, another employee, Holly McLaughlin, complained to Walmart about certain conduct of [Plaintiff]” by stating “Disputed, to the extent that all of her complaints were related to her treatment from [Plaintiff][,]” which is not responsive because this fact does not state that “all” of Holly McLaughlin’s complaints concerned Plaintiff], 221:12-19 [disputing Fact No. 139 that “Walmart offers a variety of accommodation options for employees with disabilities, including work environment adjustments, job duty modifications, job transfers, intermittent leaves of absence, and continuous leaves of absence” by stating “Disputed to the extent that [Plaintiff] was ever offered an accommodation, and the [sic] Walmart does not harm employees who request and/or need reasonable accommodations[,]” which is not responsive because this fact does not concern any offers of accommodations to Plaintiff], 22:10-13 [disputing Fact No. 140 that Plaintiff “testified that he understood Walmart policy permitted employees to take intermittent leaves of absence” by stating “Disputed to the extent that this action was not frowned upon[,]” which is not responsive because this fact does not state that use of this policy was or was not frowned upon].)

Thus, the court finds that many of Plaintiff’s responses that attempt to dispute material facts are supported by numerous citations to immaterial and irrelevant evidence and do not meaningfully dispute the material facts, such that they are not in good faith, responsive, or material as required.  (Beltran, supra, 97 Cal.App.5th at p. 875.)  The court therefore grants Defendant’s ex parte application to strike Plaintiff’s responsive separate statement.  (Id. at p. 876 [“Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are ‘disputed’ when the uncontroverted evidence clearly shows otherwise”]; Code Civ. Proc., § 436, subd. (b).)

Because the court has stricken Plaintiff’s separate statement, which may result in the granting of Defendants’ motion since the opposition papers rely on citations thereto, the court finds that it is appropriate, and therefore exercises its discretion, to continue the hearing on Defendants’ motion for summary judgment or, alternatively, summary adjudication to give Plaintiff an opportunity to correct the defects in his separate statement.  (Beltran, supra, 97 Cal.App.5th at p. 876, n. 5 [“In certain instances, particularly before granting summary judgment or adjudication, an opportunity to correct deficiencies in the separate statement may be appropriate”].)  The court expects Plaintiff’s separate statement to include good faith, responsive, and material responses to the stated material facts and to cite to evidence in support of his position that the fact is controverted.  (Id. at p. 875; Cal. Rules of Ct., rule 3.1350, subd. (f)(2); Code Civ. Proc., § 437c, subd. (b)(3).)

The court also finds good cause to continue trial to allow the court to rule on Defendants’ motion for summary judgment or, alternatively, summary adjudication before this case proceeds to trial.[3] 

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

The court will continue the hearing on Defendants’ summary judgment or, alternatively, summary adjudication for the reasons set forth above.

ORDER

The court grants defendants Walmart Inc., Wal-Mart Associates, Inc., Abel R. Alvidrez, and Conrad Schaefer’s ex parte application.  The court orders that “Plaintiff’s Response to Defendants’ Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues and Plaintiff’s Additional Facts [Redacted],” filed on November 7, 2024 by plaintiff Carl Meuller, is stricken.  (Code Civ. Proc., § 436, subd. (b).)

The court orders that the hearing on defendants Walmart Inc., Wal-Mart Associates, Inc., Abel R. Alvidrez, and Conrad Schaefer’s motion for summary judgment or, in the alternative, summary adjudication is continued to February 26, 2025, at 10:00 a.m., in Department 53.

The court orders that plaintiff Carl Mueller may file (1) a revised separate statement that cures the deficiencies with the separate statement as described in this ruling, and (2) a revised opposition memorandum of points and authorities that includes citations to the revised separate statement no later than February 3, 2025.  The court orders that plaintiff Carl Mueller may not file new evidence or make new arguments in support of his opposition.

The court orders that defendants Walmart Inc., Wal-Mart Associates, Inc., Abel R. Alvidrez, and Conrad Schaefer may file a revised reply to the revised opposition no later than February 14, 2025.

The court orders that trial is continued from January 29, 2025 to April 23, 2025, at 11:00 a.m., in Department 53.

The court orders that the final status conference is continued from January 17, 2025 to April 10, 2025, at 11:00 a.m., in Department 53.

            The deadline to complete mediation is extended to March 21, 2025.

            The court orders defendants Walmart Inc., Wal-Mart Associates, Inc., Abel R. Alvidrez, and Conrad Schaefer to give notice of this ruling.

IT IS SO ORDERED.

DATED:  November 21, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court