Judge: Robert C. Longstreth, Case: 37-2020-00037958-CU-CL-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Other Collections Summary Judgment / Summary Adjudication (Civil) 37-2020-00037958-CU-CL-CTL ROCKY MOUNTAIN SUPPORT SERVICES INC VS QUINLY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant's Motion for Summary Judgment Defendant Lawyers Title Company's Motion for Summary Judgment or, in the Alternative, Summary Adjudication (ROA 185) is DENIED.

Plaintiff is Defendant's former employee. Defendant hired Plaintiff on February 13, 2019. (Pltf. Resp.

Sep. Stmt. ¶ 17.) While Plaintiff was being recruited by Defendant's Vice President, County Manager Josh White ('White'), Plaintiff told White that Ryan Petaishiki ('Petaishiki'), had previously made death threats to Plaintiff. (Id. at ¶ 80.) Petaishiki was employed by Defendant's competitor, Fidelity National Title ('FNTC'). (Id. at ¶ 16.) On July 11, 2019, Plaintiff and Petaishiki got into a physical altercation at a bar/restaurant. (Id. at ¶ 37.) Plaintiff notified Defendant of the incident the next day. Defendant ultimately terminated Plaintiff's employment on October 29, 2019. (Id. at ¶ 61.) In his second cause of action, Plaintiff asserts a claim for violation of Labor Code section 6310.

Specifically, Plaintiff alleges Defendant terminated his employment in retaliation for the bona fide complaints he made about workplace safety. The Labor Code protects employee activities regarding health and safety and prohibits discharge and/or discrimination of an employee who '[m]ade any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.' (Lab. Code § 6310(a)(1).) Defendant first asserts it is entitled to summary adjudication of the second cause of action on the grounds that Plaintiff cannot demonstrate a good faith, bona fide complaint that he reasonably believed Petaishiki posed a threat to his safety. '[A]n employee must be protected against discharge for a good faith complaint about working conditions which he believes to be unsafe'; there is no requirement that the employee prove the workplace was actually unsafe. (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109; see also Lab. Code § 6310(b), which provides that an employee discharged 'because the employee has made a bona fide oral or written complaint' to their employer 'shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.') To the extent Defendant contends that it was not reasonable for Plaintiff to be concerned about his safety after he was in a physical altercation with Petaishiki, this argument does not have merit. Plaintiff testified Petaishiki threatened his life twice before Plaintiff began his employment with Defendant. (Pltf.

Resp. Sep. Stmt. at ¶ 70.) Defendant admits it was aware from the outset of Plaintiff's employment, Calendar No.: Event ID:  TENTATIVE RULINGS

3097620  8 CASE NUMBER: CASE TITLE:  ROCKY MOUNTAIN SUPPORT SERVICES INC VS QUINLY  37-2020-00037958-CU-CL-CTL through Plaintiff's conversations with White during the recruitment process, that Plaintiff had some concerns related to Petaishiki. (Id. at ¶¶ 12-13.) Defendant briefly asserts that Plaintiff was not fearful enough of Petaishiki to preclude him from accepting employment with Defendant, and did not ask for security measures; the court does not find this argument remotely persuasive, not least because the July 11, 2019 incident that triggered Plaintiff's complaint to Defendant occurred after Plaintiff was hired.

When Plaintiff reported the altercation to White the day after it occurred, White elevated the matter to other executives and expressly stated 'John is fearful for his safety, and as I've had time to think and sleep on this matter, I feel strongly that that (sic) we will be missing the mark if we don't address this seriously as a company.' (Def. Compendium of Exhibits ('COE') at Exh. 1; Pltf. Resp. Sep. Stmt. at ¶¶ 25-27.) FNTC responded to Plaintiff's concerns by taking protective actions as to Petaishiki's contact with Plaintiff. (Pltf. Resp. Sep. Stmt. at ¶¶ 258-260.) Based on these facts, many of which are undisputed, there is no basis for the court to conclude as a matter of law that Plaintiff's safety concerns were unreasonable or were not made in good faith.

Defendant also asserts that the second cause of action fails because his complaint did not pertain to 'unsafe working conditions or work practices' within the meaning of the statute. To the extent Defendant contends that the statute requires 'more than an isolated instance of an alleged assault and battery,' Plaintiff points out there is nothing in the statute that requires multiple instances of violence, nor does Defendant cite sufficient legal authority to support this position. Defendant also points out the July 11, 2019 incident occurred at a bar/restaurant, after hours, at an event that was not sponsored by Defendant. (Def. Sep. Stmt. ¶¶ 37-39.) Plaintiff cited evidence that he and Petaishiki were both entertaining clients at the event. (Pltf. Resp. Sep. Stmt. ¶ 38.) As the court understands it, the incident was the impetus for the complaint Plaintiff made, and once it occurred, Plaintiff's concern was the potential of continued interaction with Petaishiki within the scope of his employment. (See Pltf. Resp.

Sep. Stmt. at ¶ 18.) The fact that Plaintiff and Petaishiki worked in separate physical offices is not dispositive of the matter, given Plaintiff's evidence that he was required to spend most of his time working in the field and often in close proximity with Petaishiki. (Ibid.) A place of employment includes any place 'where employment is carried on.' (Lab. Code § 6303(a); see also City of Palo Alto v. Service Employees International Union (1999) 77 Cal.App.4th 327, 335, noting that '[w]hile Labor Code section 6400 et seq. focuses on occupational injury and illness and makes no specific mention of workplace violence or threats of violence, those provisions clearly make it an employer's legal responsibility to provide a safe place of employment for their employees.') At a minimum, Plaintiff has raised triable issues of material fact as to whether his complaint was one that referenced 'unsafe working conditions, or work practices, in their employment or place or employment.' (Lab. Code § 6310(b).) Defendant asserts the second cause of action fails because Plaintiff cannot establish causation.

Defendant asserts Plaintiff's concerns about Petaishiki were too remote in time from Defendant's termination to support an inference of retaliation. The court does not find this argument persuasive; Plaintiff's employment was terminated about 4.5 months after he made the report of the incident involving Petaishiki. This is not sufficiently remote for the court to conclude as a matter of law that Defendant's decision to terminate Plaintiff's employment was not retaliatory. Likewise, as Plaintiff points out in his opposition, the same actor inference applies to claims for discrimination. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 273.) Here, Plaintiff is not making a discrimination claim, but a retaliation claim. Defendant appears to concede there is no legal authority supporting application of a same-actor inference in retaliation cases, and rather is arguing for an extension of the law here, '[c]onsidering the other similarities between discrimination and retaliation cases.' (Reply at 7:19.) The court is not persuaded; the same-actor inference suggests the person who fires an employee did not have a discriminatory motive, which is a substantively different analysis from whether termination was an act of retaliation in response to a report of an unsafe workplace. In any event, 'reliance on the same-actor inference to carry the moving party over the hurdle of summary judgment is legally impermissible, because drawing legitimate inferences from the facts are jury functions and, at summary judgment, the court must disregard all evidence favorable to the moving party that the jury is not required to believe.' (Mackey v. Bd. of Trustees of Calif. State Univ. 2019) 31 Cal.App.5th 640, 674 (citation omitted).) Calendar No.: Event ID:  TENTATIVE RULINGS

3097620  8 CASE NUMBER: CASE TITLE:  ROCKY MOUNTAIN SUPPORT SERVICES INC VS QUINLY  37-2020-00037958-CU-CL-CTL Finally, Defendant asserts it has legitimate, non-retaliatory reasons for terminating Plaintiff's employment. Under the McDonnell Douglas burden-shifting analysis, once a plaintiff establishes a prima facie case, 'the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action.' (Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1109.) 'If the employer produces evidence showing a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture [citation] and the burden shifts back to the employee to provide substantial responsive evidence that the employer's proffered reasons were untrue or pretextual.' (Ibid., internal quotes omitted.) As to whether Defendant has demonstrated evidence of legitimate, non-retaliatory reasons for terminating Plaintiff's employment, the court finds there are triable issues of material fact as to the existence of any required sales goals and/or the extent to which Plaintiff met any required targets. (Pltf. Resp. Sep. Stmt. ¶¶ 33-34.) Accordingly, the court does not reach the issue of whether Plaintiff has sufficient evidence of pretext.

However, Defendant correctly notes in its reply papers that Plaintiff failed to cite in his separate statement any of the pretext evidence he references in his opposition papers, and accordingly, the court did not consider such evidence. ('This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.' United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded by statute on other grounds.) As to Plaintiff's second cause of action, summary adjudication is denied. (Ntc. Mtn. at Issue Nos. 1-3.) With regard to the first cause of action for wrongful termination in violation of public policy, the only argument Defendant makes is that this claim fails because the second cause of action fails, and the first cause of action is derivative of the second cause of action. Since Defendant was not successful in obtaining summary adjudication of the second cause of action, summary adjudication of the first cause of action is denied as well. (Ntc. Mtn. at Issue No. 4.) Plaintiff's third cause of action is for violation of Labor Code section 201 and 203. 'If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.' (Lab. Code § 201(a).) Defendant is not entitled to summary adjudication of this claim because it failed to provide evidence that Plaintiff was immediately paid all wages. (Def. Sep. Stmt. at ¶ 66.) Defendant also argues it cannot be subject to waiting time penalties because there is no evidence Defendant willfully failed to pay all wages due at separation. (See Lab. Code § 203.) 'As used in section 203, 'willful' merely means that the employer intentionally failed or refused to perform an act which was required to be done.' (Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 54 (italics omitted).) Again, Defendant is not entitled to summary adjudication of this claim because it failed to provide evidence that Plaintiff was immediately paid all wages. Accordingly, summary adjudication of the third cause of action is denied (Ntc. Mtn. at Issue No. 5), and summary judgment is denied.

Defendant's evidentiary objections fail to comply with court rules, which are required to be in a specific form. (Cal. R. Court, rule 3.1354.) In particular, the objections are required to be numbered. (Id. at subd. (b).) Moreover, a separate memorandum is not authorized; any argument regarding the objections ought to have been presented in Defendant's reply papers. Efforts to circumvent page limits are not well-taken by the court. (Cal. R. Court, rule 3.1113(d) and (g).) In any event, the court did not find the objections material to its disposition of the motion, and therefore declines to rule on them.

(Code Civ. Proc. § 437c(q).) Plaintiff's Motion to Compel Deposition Plaintiff's Motion for an Order (1) Compelling Pete Filler to Answer Deposition Questions; (2) Compelling Pete Filler to Produce Documents and Resume His Deposition; and (3) Imposing Monetary Sanctions (ROA 192) is GRANTED.

The parties dispute whether this motion was timely brought. On July 19, 2023, the court ordered all motions and discovery were to be completed by February 9, 2024. (ROA 169.) Plaintiff's motion, which was filed November 21, 2023 and initially set for hearing on February 23, 2024, does not comply with Calendar No.: Event ID:  TENTATIVE RULINGS

3097620  8 CASE NUMBER: CASE TITLE:  ROCKY MOUNTAIN SUPPORT SERVICES INC VS QUINLY  37-2020-00037958-CU-CL-CTL this requirement. Plaintiff asserts the court 'unequivocally ordered' the deposition to be completed no later than September 2023. Plaintiff fails to cite any such order, and this is not consistent with the court's own recollection, nor with the court's practices in conducting informal discovery conferences ('IDCs').

The court does not make discovery orders at IDCs, which, as judicially supervised meet and confer efforts, are akin to settlement conferences and are not hearings on the merits. However, the court finds there is good cause to consider the motion given that the parties previously attended multiple IDCs with the court related to this deposition, and stipulated during the last IDC to a mutually agreeable date for the deposition. (See minutes at ROA 182.) Moreover, given that trial is more than eight months away, there is no prejudice to any party in hearing the motion.

Plaintiff began the deposition of non-party deponent Pete Filler on September 22, 2023. After a break given at Filler's counsel's request, Filler failed to return. (Gulley Decl. at Exh. B.) Plaintiff therefore did not have the opportunity to complete his questioning of Filler.

In his opposition, Filler protests that the deposition was harassing and that the questioning was badgering. His option, in such event, is to seek a protective order from the court. (Code Civ. Proc. § 2025.420(a).) Filler never did so; he simply walked out. Filler is required to resume the deposition.

Plaintiff also seeks to compel the documents he requested to be produced at deposition in his subpoena to Filler. There is no evidence Filler served any written objection to the document requests contained in the subpoena, nor was a motion to quash ever filed. Filler's argument that a separate statement was required does not have merit; no separate statement is required '[w]hen no response has been provided to the request for discovery.' (Cal. R. Court, rule 3.1345(b)(1).) Filler can hardly complain that 'Quinly is unable to identify even a single document that Filler failed to produce' when Filler walked out in the middle of it, preventing the completion of questioning. Filler's argument that any responsive documents have already been produced by others is likewise unavailing; this does not excuse Filler from making his own production, nor does Filler cite any legal authority to support this argument. Filler is required to produce any responsive documents in his possession in accordance with the subpoena.

Plaintiff requests that Filler be compelled to respond to his question during the deposition, before it was terminated, asking Filler what documents he reviewed prior to his deposition. Filler's counsel instructed him not to answer the question on the grounds of 'privilege' (Gulley Decl. at Exh. B, 21:18), then advised his client, 'if you looked at documents that I did not show you in preparation for your deposition, you can answer that, but I don't want you to disclose what documents I chose to show you in preparation for your deposition.' (Id. at 21:20-23.) Filler then testified 'None,' indicating all of the documents he reviewed were shown to him by his counsel. (Id. at 22:7-12.) The court is aware of no binding California authority that squarely addresses the question of whether the selection of documents shown by an attorney to a client in preparation for deposition is work product privileged, and Filler cited none, though he did cite several cases as analogous authority. Filler was not asked about his communications with his lawyer, nor is the court persuaded that the question invades the attorney work product privilege (see Evid. Code § 771, permitting inspections of writings used to refresh the recollection of a witness). To the extent that a privilege argument can be made, given Evid. Code § 771, which gives a party the right to know what documents a witness has used to refresh recollection and, therefore, necessarily the right to identification of those documents, a lawyer necessarily waives any privilege argument by using documents to refresh recollection.

The court orders discovery reopened for the limited purpose of allowing Plaintiff to complete the deposition of Pete Filler and to obtain documents responsive to the subpoena. The deposition is to be completed on or before August 16, 2024.

Plaintiff seeks monetary sanctions against Filler in the amount of $3,843.00, and also asks that Filler cover the cost of the deposition. The court finds sanctions are appropriate, given Filler's conduct in leaving the deposition before it was completed and given that Filler was unsuccessful in opposing this motion. (Code Civ. Proc. § 2025.480(j).) The court finds that sanctions are not appropriate for the portion of the motion that addresses disclosure of documents used to refresh recollection. In his reply, Calendar No.: Event ID:  TENTATIVE RULINGS

3097620  8 CASE NUMBER: CASE TITLE:  ROCKY MOUNTAIN SUPPORT SERVICES INC VS QUINLY  37-2020-00037958-CU-CL-CTL Plaintiff increases the request to $6,670.50, but the court did not consider the additional sanctions request in the reply because Filler did not receive sufficient notice or opportunity to respond to this.

Pete Filler is to pay $2,000.00 in sanctions to Plaintiff on or before July 12, 2024. In addition, the court also orders Filler to pay the cost of the resumed portion of the deposition.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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