Judge Robert C. Longstreth, Case Number: 37-2020-00008111-CU-WT-CTL, Date: 2024-04-19 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2020-00008111-CU-WT-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2020-00008111-CU-WT-CTL CASTRO VS SAN DIEGO CONVENTION CENTER CORPORATION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 02/01/2024

Plaintiff's Motion to Compel Answers at Deposition Plaintiff's Motion to Compel Answers at Deposition and to Impose Monetary Sanctions (ROA 95) is GRANTED IN PART and DENIED IN PART.

Plaintiff took the deposition of Defendant San Diego Convention Center Corporation, Inc.'s ('Defendant's') designated person most qualified ('PMQ'), Terry Kurtenbach, on June 9, 2023. During the deposition, Defendant's counsel instructed the witness not to answer dozens of questions on the grounds the questions were beyond the scope of the deposition notice. Plaintiff now moves for an order compelling answers to these questions.

Defendant's counsel's instructions not to answer questions on the grounds the questions were beyond the scope of the PMQ deposition notice were wholly improper and unjustified. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013-15; see also Code Civ. Proc. � 2025.460(a).) Regardless of whether an objection on these or other grounds is proper, an instruction not to answer a question is generally improper absent a claim of privilege. Defendant's opposition fails to address this central issue of the motion.

Defendant instead asserts that despite its counsel's frequent instructions not to answer, the deponent nonetheless did ultimately provide a substantive response to many of the questions. (See Def. Sep.

Stmt. at Nos. 8-10, 12-18, 20, 22-29, 32-33, 35-41, and 44-46.) As to a few questions, Defendant also asserts Plaintiff ultimately obtained the information through other sources. (Id. at Nos. 5, 8, 20, 33, and 44.) The fact that Plaintiff may have obtained information from other sources does not excuse Defendant's PMQ from responding to a deposition question. However, as to Question Nos. 8-9, 12, 26-28, 33, 40, and 44-45, the motion is denied on the grounds the deponent did ultimately provide testimony in response to these questions.

Defendant also asserts Plaintiff's meet and confer effort before filing this motion was not reasonable because Plaintiff's meet and confer letter did not cite the same legal authorities that are now cited in Plaintiff's motion. This argument does not have merit. Plaintiff's letter did contain legal authority. (Pltf.

Exh. 7 at p. 6.) Nothing requires a party to disclose every legal authority that forms the basis of its argument before filing a discovery motion. Plaintiff also points out in her reply that there were meet and confer efforts throughout the deposition.

Defendant asserts it offered to provide answers to a few of the questions in its subsequent meet and Calendar No.: Event ID: TENTATIVE RULINGS

3046194 4 CASE NUMBER: CASE TITLE: CASTRO VS SAN DIEGO CONVENTION CENTER 37-2020-00008111-CU-WT-CTL confer effort, but that Plaintiff did not respond. (Def. Sep. Stmt. at Nos. 1 and 49.) The motion is granted as to these two questions, but the court took this into consideration in evaluating Plaintiff's request for sanctions.

In its separate statement, Defendant asserts two questions raise privacy concerns. (Def. Sep. Stmt. at Nos. 6-7.) Defendant fails to discuss this issue in its memorandum. The court finds Defendant has not met its burden to demonstrate a privacy interest sufficient to justify its failure to answer these questions.

Accordingly, the motion is granted as to these questions.

The motion is granted as to Question Nos. 1-7, 10-11, 13-25, 29-32, 34-39, 41-43, and 46-49 and denied as to Question Nos. 8-9, 12, 26-28, 33, 40, and 44-45.

The court finds sanctions are warranted against Defendant and its counsel, Matthew Thurmer, and grants Plaintiff's request for monetary sanctions. (Code Civ. Proc. � 2025.480(j).) However, given that the deponent did ultimately answer some of the questions, and that Defendant offered to respond to two more during the meet and confer process, the court reduces the sanctions award to $4,500.00.

Defendant and its counsel Mr. Thurmer are to pay sanctions in the amount of $4,500.00 to Plaintiff Sharlene Allen-Castro on or before May 17, 2024.

Finally, Defendant's 'objection' to Plaintiff's failure to lodge a certified copy of the deposition transcript is overruled. (Code Civ. Proc. � 2025.480(h).) There is no dispute as to the accuracy of the copy provided with the moving papers, and Defendant lodged a certified copy.

Defendants' Motion for Summary Judgment, or Alternatively Summary Adjudication Defendants San Diego Convention Center Corporation, Inc. and Fred Cervantes' Renewed Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues is GRANTED IN PART and DENIED IN PART. (ROA 150.) Defendants assert they are entitled to renew their motion for summary judgment/adjudication pursuant to Code of Civil Procedure section 1008(b). In particular, Defendants assert the motion is based on new facts and new circumstances. Defendants also assert this motion is proper because the court did not deny its prior motion for summary adjudication, it merely declined to consider the requests for summary adjudication.

The court's prior ruling does state the court declined to consider Defendants' requests for summary adjudication due to procedural defects. (ROA 124.) However, the ruling also makes clear the entire motion, including the motion for summary adjudication, is denied. The court also denied Defendants' counsel's request at the hearing to 're-file' the motion.

However, on review of the evidence, the court has determined the renewed motion is made on at least some new or different facts which were not in Defendants' possession at the time of the prior motion.

Accordingly, the court has considered Defendants' renewed motion.

Defendants assert Plaintiff's first, second, third, fourth, fifth, and sixth causes of action are barred because Plaintiff failed to exhaust her administrative remedies before filing this lawsuit. (Govt. Code � 12960.) It is undisputed that Plaintiff filed a charge with the Equal Employment Opportunity Commission ('EEOC') alleging age and disability discrimination. (Pltf. Resp. Sep. Stmt. at � 26.) It is further undisputed the EEOC charge does not allege harassment or discrimination on the basis of sex. (Id. at � 28.) However, Defendants assert Plaintiff did not file a complaint under the Fair Employment and Housing Act ('FEHA') or obtain a FEHA right-to-sue letter until after this action was filed. In opposition, Plaintiff asserts she did file a complaint with the Department of Fair Employment and Housing ('DFEH') before filing this lawsuit and obtained a right-to-sue letter. Plaintiff relies on a declaration from her former counsel, Ethan Surls, which states he filed a complaint with DFEH alleging harassment and discrimination based on disability and sex before this lawsuit was filed. (Pltf. Exh. 4, Surls Decl. at � 4.) Calendar No.: Event ID: TENTATIVE RULINGS

3046194 4 CASE NUMBER: CASE TITLE: CASTRO VS SAN DIEGO CONVENTION CENTER 37-2020-00008111-CU-WT-CTL Attorney Surls further states he 'would have obtained' the right-to-sue letter on or around February 10, 2020, the day before the Complaint in this action was filed, although no letter of that date was provided.

(Ibid.) In light of this evidence, the court finds there is at least a triable issue of material fact precluding summary adjudication of these causes of action on the grounds Plaintiff failed to exhaust her administrative remedies. Defendants' cite to a repealed section of the Evidence Code to support their 'best evidence' argument; and the applicable section of the Code does not support their argument.

Their further argument that the declaration should be 'viewed with mistrust' confirms the court's view that this is a matter of the weight to be given to the evidence, not its admissibility. Defendants' evidentiary objections nos. 1-2 to Attorney Surls' declaration are overruled.

As to Plaintiff's first cause of action alleging sex harassment under FEHA, Defendants assert the alleged harassment is not sufficiently severe or pervasive. 'To prevail on a hostile work environment claim under California's FEHA, an employee must show that the harassing conduct was 'severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.' [Citations.]' (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) In evaluating this claim, the court is mindful of the legislature's directive that '[h]arassment cases are rarely appropriate for disposition on summary judgment.' (Govt. Code � 12923(e).) The court finds Defendants have not met their initial burden to demonstrate, as a matter of law, that the conduct was not 'severe or pervasive,' and that Plaintiff has sufficiently raised triable issues of material fact as to whether the conduct was sufficiently severe or pervasive, largely by pointing to material facts that Defendants ignored in their moving papers and do not dispute in their reply. (Pltf. Resp. Sep. Stmt. at �� 5-10, 17-18, and Addl. Facts �� 1-5.) As to Plaintiff's second cause of action for failure to prevent sexual harassment under FEHA, Defendants assert this claim fails because Plaintiff's harassment claim fails. In light of the court's denial of summary adjudication as to Plaintiff's sexual harassment cause of action, summary adjudication of this cause of action is denied as well.

As to Plaintiff's third cause of action for disability discrimination under FEHA, Defendants assert Plaintiff was not subjected to an adverse employment action. In order to prevail on this cause of action, Plaintiff must demonstrate she was subjected to an adverse employment action because of a disability. (Faust v. California Portland Cement Co.(2007) 150 Cal.App.4th 864, 886.) Here, it is undisputed Plaintiff took medical leave from August to November 2017. (Pltf. Resp. Sep. Stmt. at � 21.) Although Plaintiff disputes that she had no limitations when she returned to work, she does not identify any adverse employment action that she suffered as a result of any disability. (Id. at �� 22-23.) Accordingly, summary adjudication of this cause of action is granted.

As to Plaintiff's fourth cause of action for failure to provide reasonable accommodation under FEHA, Defendants assert Plaintiff cannot demonstrate Defendant failed to reasonably accommodate her disability. Plaintiff has raised triable issues of material fact that preclude summary adjudication. (Pltf.

Resp. Sep. Stmt. �� 27-29.) Specifically, Plaintiff has provided evidence that she requested help from a supervisor, advising that it was difficult for her to lift due to her medical treatment, and was told that if she needed an accommodation she would be sent home, leaving Plaintiff with the impression she would be punished if she made further requests for accommodation.

As to Plaintiff's fifth cause of action for failure to engage in the interactive process under FEHA, Defendant asserts Plaintiff cannot demonstrate she requested a reasonable accommodation. Plaintiff has raised triable issues of material fact that preclude summary adjudication. (Pltf. Resp. Sep. Stmt. �� 32-33.) Again, Plaintiff has provided evidence that she requested help from a supervisor, advising that it was difficult for her to lift due to her medical treatment, and was told that if she needed an accommodation she would be sent home, leaving Plaintiff with the impression she would be punished if she made further requests for accommodation.

As to Plaintiff's sixth cause of action for retaliation under FEHA, the only argument Defendants raised was that Plaintiff failed to exhaust her administrative remedies. Accordingly, summary adjudication is Calendar No.: Event ID: TENTATIVE RULINGS

3046194 4 CASE NUMBER: CASE TITLE: CASTRO VS SAN DIEGO CONVENTION CENTER 37-2020-00008111-CU-WT-CTL denied for the reasons stated above.

As to Plaintiff's seventh cause of action for intentional infliction of emotional distress, Defendants assert their conduct was not sufficiently extreme or outrageous to support this claim. In light of Plaintiff's sexual harassment claim, for which the court is denying Defendants' motion for summary adjudication, summary adjudication of this cause of action is denied as well. (See Kelley v. The Conoco Companies (2011) 196 Cal.App.4th 191, 215-216, discussing sexual harassment as a form of outrageous conduct.) As to Plaintiff's eighth cause of action for wrongful termination in violation of public policy, Defendant SDCCC asserts it cannot be liable on this cause of action because it is a public entity. As a matter of law, a public entity cannot be held liable for this common law claim. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899-900; see also Govt. Code � 815, providing public entities are generally immune from suit except as provided by statute.) Plaintiff does not dispute that SDCCC is a public entity. (Pltf. Resp. Sep. Stmt. at �� 1-2.) Accordingly, summary adjudication is granted as to Plaintiff's eighth cause of action against SDCCC.

As to Plaintiff's ninth cause of action for unfair business practices in violation of Business and Professions Code section 17200 et seq., Defendants assert this claim fails because Plaintiff cannot establish her claims for discrimination and retaliation. In light of the court's denial of summary adjudication as to Plaintiff's sexual harassment and retaliation claims, summary adjudication of this cause of action is denied as well.

Defendants' requests for judicial notice are granted as to Exhibits 1-4. As to Exhibits 5-6, the requests are denied on the grounds they are moot, as the court is already required to take judicial notice of California and federal law. (Evid. Code � 451(a).) Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

Calendar No.: Event ID: TENTATIVE RULINGS

3046194 4