Judge: Stephen I. Goorvitch, Case: 19STCV46843, Date: 2023-10-19 Tentative Ruling

Case Number: 19STCV46843    Hearing Date: October 19, 2023    Dept: 39

Kathleen Eubank v. Barry & Taffy, Inc.

Case No. 19STCV46843

Final Status Conference Order

A.        Parameters of the Trial

On June 20, 2023, the Court granted its own motion for reconsideration and denied summary adjudication of the sixth and eighth causes of action: Retaliation in violation of Government Code sections 12945.2 et seq., and wrongful termination in violation of public policy, respectively.  Plaintiff’s allegations are as follows:

“On or about October 19, 2017, Plaintiff began suffering from intestinal issues with chronic diarrhea and urinary tract infections as symptoms.”  (Complaint, ¶ 17.)  “As a result, Plaintiff informed Defendants of the same.”  (Ibid.)  “On or about October 20, 2017, due to the severity of her physical symptoms, Plaintiff informed Defendants that she would not be able to report to work.”  (Id., ¶ 19.)  “On or about October 22, 2017, Plaintiff visited her medical provider, whom hospitalized Plaintiff due to the severity of her symptoms.”  (Id., ¶ 20.)  “While in the hospital, Defendants were informed of Plaintiff’s medical condition and that her medical provider had placed her on medical leave until on or about December 18, 2017 to seek medical treatment and recuperate.”  (Ibid.)  “Throughout this time, Plaintiff updated Defendants on her condition.”  (Ibid.)  “On or about December 21, 2017, Plaintiff informed Defendants that she would not be able to report to work due to symptoms related to her condition.”  (Id., ¶ 21.)  “On or about January 4, 2018, Plaintiff informed Defendants that she was unable to report to work due to her condition.”  (Id., ¶ 22.)  “On or about January 15, 2018, Plaintiff informed Defendants that her condition prevented her from reporting to work.”  (Id., ¶ 23.)  “On or about January 16, 2018, Plaintiff returned to work.  At the end of the day, Plaintiff was pulled aside by her manager, whom informed her that as a result of her medical condition and her ongoing accommodations she was being terminated.”  (Id., ¶ 24.)  “On or about January 16, 2018, Defendants terminated Plaintiff.”  (Id., ¶ 25.)

Plaintiff’s theory is that her “exercising her right to medical leave was a substantial motivating reason and/or factor in the decisions to subject Plaintiff to the aforementioned adverse employment actions,” viz., termination.  (See Complaint, ¶ 82.)  In order to proceed on this theory, Plaintiff must prove that she was entitled to leave under the California Family Rights Act (the “CFRA”), meaning that she had a “serious health condition.”  That term is defined as the following: “[A]n illness, injury, impairment, or physical or mental condition that involves either of the following: (1) Inpatient care in a hospital, hospice, or residential health care facility; [or] (2) Continuing treatment or continuing supervision by a health care provider.”  (Gov. Code, § 12945.2(b)(13).)  The case will proceed to trial on these two claims.

B.        Time Estimate

According to their joint witness list, dated March 20, 2023, the parties estimate that the testimony should take approximately 50 hours, which means the trial would take a total of 14 to 15 court days.  The parties’ revised witness list, dated October 12, 2023, lists 37 potential witnesses and has no time estimates. 

This is a narrow and straightforward case, as the only issues will be: (1) Did Plaintiff have a “serious health condition,” for purposes of Government Code section 12945.2; (2) Was Plaintiff’s medical leave a substantial motivating reason or factor in Defendant’s decision to terminate her; and (3) What are Plaintiff’s damages.  “Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. . . .  This view is not only contrary to law but undermines a trial judge's obligation to be protective of the court’s time and resources as well as the time and interests of . . . jurors and other litigants waiting in line to have their cases [tried].”  (California Crane School, Inc. v. National Com. For Certification of Crane Operators (2014) 226 Cal.App.4th 12, 20.)  Indeed, this concern is critical, as Department #39 currently has 659 open cases, which gives rise to constant jury trials and heavy motions calendars.  The parties’ unreasonable time estimates deprive other litigants of their trial dates. 

            Based upon the foregoing, the Court disregards the parties’ trial estimates.  The Court’s tentative ruling is that each side shall have nine (9) hours to try this case, absent unforeseen circumstances or other good cause.  This estimate shall include everything from opening statement to closing argument.  Voir dire shall not count against this time estimate and shall be handled separately.

            The Court will revisit the issue of bifurcation if necessary.  However, the time estimate likely resolves the need for bifurcation. 

C.        Plaintiff’s Motions in Limine

The Court previously denied Plaintiff’s motion in limine #1 without prejudice.  (See Court’s Minute Order, dated April 7, 2023.)  The Court ruled as follows:

Plaintiff seeks an order precluding Defendant from introducing exhibits not produced in discovery, and from calling witnesses not identified in discovery.  The Court will address this issue at trial if necessary.  The Court cannot exclude witnesses or evidence not identified or produced during discovery unless the omission violated a court order or otherwise was willful.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.) 

(Id., pp. 1-2.)

D.        Defendant’s Motions in Limine

1.         Defendant’s Motion in Limine #1 – Granted

The Court previously granted Defendant’s motion in limine #1.  (See Court’s Minute Order, dated April 7, 2023.)  The Court ruled as follows:

            Defendant seeks an order excluding evidence of Defendant’s financial condition, including evidence related to the sale of Defendant’s business and the financial status of its former owner, Barry Berger.  Plaintiff opposes the motion only insofar as is necessary to respond to any evidence or argument by Defendant concerning these issues.  The Court finds that introduction of this evidence by either party would violate Evidence Code section 352.  Therefore, the Court grants the motion.  In addition, the Court orders that neither party may introduce evidence concerning Defendant’s financial condition, including evidence relating to the sale of Defendant’s business and the financial status of its former owner, Barry Berger, without first seeking authorization from the Court. 

(Id., p. 2.)

            2.         Defendant’s Motion in Limine #2 – Denied as Moot

            The Court previously granted in part and denied in part Defendant’s motion in limine #2.  (See Court’s Minute Order, dated April 7, 2023.)  However, the issue now is moot given the Court’s ruling on its own motion for reconsideration. 

            3.         Defendant’s Motion in Limine #3 – Granted

            The Court previously granted Defendant’s motion in limine #3.  (See Court’s Minute Order, dated April 7, 2023).  The Court ruled as follows:

Defendant seeks an order excluding any evidence concerning a proposed severance agreement offered to Plaintiff.  This evidence is inadmissible under Evidence Code section 1152.  In the alternative, the Court excludes this evidence under Evidence Code 352, as any probative value would be greatly outweighed by the prejudice. 

(Id., p. 3.)

            4.         Defendant’s Motion in Limine #4 – Granted in Part; Denied in Part

            Defendant moves to exclude evidence that Plaintiff “requested or took CFRA leave at any time during her employment other than from October 20, 2017 to December 18, 2017.”  Plaintiff’s theory is that she was terminated for having exercised her rights under the CFRA between October 20, 2017, and January 16, 2018.  Plaintiff may present evidence that she qualified for CFRA leave during this time period.  The Court declines to limit the date to December 18, 2017, as requested by Defendant’s counsel because, in theory, absences between December 18, 2017, and January 16, 2018, may qualify under the CFRA if Plaintiff demonstrates that they stemmed from a need for “continuing treatment or continuing supervision by a health care provider.”  Indeed, this is one reason cited in Defendant’s termination memo, and it is the jury’s decision whether these additional absences are covered under the CFRA.    

The motion is granted with respect to any evidence that Plaintiff “requested or took CFRA leave” before October 20, 2017.  The Court finds that this evidence is not probative of the dispositive issues, and any probative value is greatly outweighed by the prejudice.  Therefore, the Court grants the motion in part under Evidence Code section 352.  This order only prohibits Plaintiff from introducing evidence that she “requested or took CFRA leave” prior to October 20, 2017.  This order shall not preclude Plaintiff from introducing evidence of her medical history or related absences prior to October 20, 2017.  If necessary, the Court will issue a limiting instruction that this evidence may only be considered for purposes of determining whether Plaintiff had a “serious health condition,” as that term is defined by Government Code section 12945.2, between October 17, 2017, and January 16, 2018.    

            5.         Defendant’s Motion in Limine #5 – This motion was withdrawn on October 11, 2023, so the Court need not rule on it. 

            6.         Defendant’s Motion in Limine #6 – Granted in Part; Denied in Part

            Defendant seeks to preclude Plaintiff from making “reptile theory” arguments, as well as a host of other arguments.  The motion is granted in that Plaintiff’s counsel may not argue policy considerations or advocate for an award based upon factors other than the evidence in this case.  The motion is otherwise denied. 

            7.         Defendant’s Motion in Limine #7 – Granted in part; Denied in Part

            The Court has already granted Defendant’s motion in limine #4, to preclude evidence that Plaintiff “requested or took CFRA leave” before October 20, 2017.  The Court similarly grants Defendant’s motion in limine with respect to the time period before October 20, 2017.  However, the motion is denied with respect to arguments and evidence that Defendant “interfered with” or “denied” CFRA leave after October 20, 2017.  This evidence is probative of the fourth element: Did Plaintiff suffer an adverse employment action because she exercised the right to take a CFRA leave.”  Simply, evidence that Defendant attempted to interfere with Plaintiff’s alleged CFRA leave from October 20, 2017, to January 16, 2018, may be probative whether Defendant terminated Plaintiff as a result of having been absent during this time period.  Regardless, any prejudice associated with this evidence and argument is minimal.  Therefore, the motion is denied with respect to the time period of October 20, 2017, and the date of Plaintiff’s termination. 

            8.         Defendant’s Motion in Limine #8 – Granted in Part; Denied in Part

            Defendant seeks to exclude parts of the opinion of Plaintiff’s damages expert, Phillip Sidlow.  Plaintiff’s counsel represents that Sidlow will not testify that “Ms. Eubank was in fact subjected to discriminatory hiring practices and that is why she did not find work.”  (Plaintiff’s Opposition, p. 5:12-14.)  The Court grants the motion and orders that Sidlow may not testify that Plaintiff was unable to find work for any specific reason, as such testimony would be wholly speculative.  The motion is denied in that Sidlow may testify that certain factors make it difficult for someone to find a new job, e.g., age, disability, etc.  Sidlow may not testify that Plaintiff actually suffers from these conditions; he may only testify that someone with these conditions has a more difficult time finding employment.

            Defendant also seeks to exclude evidence that Defendant’s counsel has hired Mr. Sidlow in their own cases.  Plaintiff may introduce evidence that Mr. Sidlow has been hired by defendants’ and plaintiffs’ attorneys alike.  However, the Court grants the motion and orders that Plaintiff’s counsel may not elicit testimony that Mr. Knee’s partners have hired Mr. Sidlow in other cases.  There is little, if any, probative value to this testimony (beyond that Mr. Sidlow has worked for defense attorneys in general) and any probative value would be greatly outweighed by the prejudice associated with this testimony. 

            E.         Expert Witnesses

            Plaintiff has noticed approximately 21 expert witnesses, and three other medical doctors who will be testifying.  This is excessive and cumulative given the narrow scope of this case.  Rather than exclude witnesses at this stage, the Court will address this issue by virtue of the trial estimate.

            F.         Courtroom Etiquette

During the trial, the parties may not say anything in front of the jury except for the following:

            a.         The attorneys may call a witness to the stand by saying the witness’s name and, if appropriate, stating that the witness is being called under Evidence Code section 776.  The parties may not explain Evidence Code section 776 or provide any explanation that the witness is affiliated with the other side.

            b.         The attorneys may ask questions of the witnesses but they may not argue their cases during the witness examinations.

            c.         The attorneys may seek to introduce exhibits but shall not provide any explanation of the exhibit or the theories of admissibility/authenticity unless in response to a question or invitation from the Court.

            d.         The attorneys may raise objections, but there shall be no speaking objections.  The attorneys may not provide argument on any objection unless in response to a question or invitation from the Court.

            e.         The attorneys may move to strike testimony if the Court sustains an objection.  However, the attorneys may not raise any other motion in front of the jury, e.g., a motion for non-suit, a motion for mistrial, etc.  Instead, the attorneys shall make their objection for the record and then raise the motion outside the presence of the jury.  If necessary, the attorneys may ask for a sidebar to “raise a motion.” 

            f.          The parties shall comply with rule 3.120 of the Local Rules, which states: “Persons in the courtroom, including the parties and their counsel, must not indicated, by facial expression, shaking of the head, gesturing, shouts, or other conduct their disagreement with or approval of testimony or other evidence.” 

            G.        Notice

            The Court’s clerk shall provide notice.