Judge Teresa A. Beaudet, Case Number: 20STCV01544, Date: 2024-12-06 Tentative Ruling

MIKE YESSIAN, et al. Plaintiff, vs. GARFIELD BEACH CVS LLC, et al. Defendants.	Case No.:	20STCV01544
	Hearing Date:	December 6, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: MOTION FOR JUDGMENT NOTHWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL

Plaintiffs Mike Yessian and Mandi Martinez filed this action on January 13, 2020 against Defendant Garfield Beach CVS LLC. On March 14, 2023, Plaintiffs Michael Yessian and Mandi Martinez (jointly, “Plaintiffs”) filed the operative Third Amended Complaint (“TAC”) against Defendants Garfield Beach CVS LLC dba CVS Pharmacy Store and Deborah Padilla. The TAC alleges causes of action for (1) discrimination in violation of the Unruh Act; (2) defamation per se; (3) intentional infliction of emotional distress, and (4) negligent hiring, supervision, or retention of employee.

On October 4, 2024, the Court entered a Judgment on Jury Verdicts in this action. The October 4, 2024 Judgment provides, inter alia, that “[t]his action came on regularly for trial on August 7, 2024, in Department 50 of the Superior Court for the County of Los Angeles, the Hon. Teresa A. Beaudet presiding…Plaintiffs asserted four (4) causes of action in their operative Third Amended Complaint (‘TAC’ or ‘the Action’): (1) Discrimination in Violation of the Unruh Act; (2) Defamation Per Se; (3) Intentional Infliction of Emotional Distress; and (4) Negligent Hiring, Supervision, or Retention of Employee. On February 22, 2023, the Court granted Defendants’ Motion for Summary Adjudication as to Plaintiffs’ Fourth Cause of Action for Negligent Hiring, Training, Supervision and/or Retention of Employee.”

The October 4, 2024 Judgment further provides that “[o]n August 7, 2024, a jury of fourteen (14) persons, including three alternates, was regularly impaneled and sworn in to hear testimony, consider all admissible evidence, and hear argument of counsel as to Plaintiff’s three (3) remaining causes of action against Defendants. Witnesses were sworn and testified. After hearing the evidence and arguments of counsel, the jury was duly instructed by the Court and the cause was submitted to twelve (12) jurors for deliberation and decision. The jury deliberated and, on August 16, 2024, delivered to the Court verdicts in favor of both Defendants, as set forth in the Special Verdict Forms signed by the Presiding Juror, copies of which are attached hereto as Exhibits A and B. By reason of said jury verdicts and prior court rulings, both Defendants are entitled to judgment against both Plaintiffs.” The October 4, 2024 Judgment provides “NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Judgment be and is hereby entered in favor of Defendants and against Plaintiffs, that Plaintiffs take nothing from Defendants…”

On November 7, 2024, the Court issued a minute order in this action providing, inter alia, that “[t]he Court is in receipt of Plaintiff’s Michael Yessian and Mandi Martinez’s Joint Notice of Intent to Move for a New Trial filed October 22, 2024 and a Notice of Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for a New Trial filed November 1, 2024. The Courts [sic] sets the matter as follows: Hearing on Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for a New Trial is scheduled for 12/06/24 at 02:00 PM in Department 50 at Stanley Mosk Courthouse.”

Plaintiffs now move “for judgment in its [sic] favor on all claims notwithstanding the verdict rendered by the jury on August 16, 2024.” Plaintiffs also move for a new trial. Garfield Beach CVS LLC and Deborah Padilla (jointly, “Defendants”) oppose.

In connection with their opposition to the instant motion, Defendants filed a request for a “10-day extension to file the complete certified trial transcript in support of their Opposition to Plaintiffs’ Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for New Trial.” (Defendants’ Request for Extension at p. 2:2-5 [emphasis omitted].)

Defendants cite to Code of Civil Procedure section 659a, which provides that “[w]ithin 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties shall have 10 days after that service within which to serve upon the moving party and file any opposing briefs and accompanying documents, including counter-affidavits. The moving party shall have five days after that service to file any reply brief and accompanying documents. These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.”

The Court notes that the 10-day extension of Defendants’ opposition deadline allowed by Code of Civil Procedure section 659a appears to have already passed. In addition, it does not appear that Defendants have yet filed any complete certified trial transcript in support of their opposition.

In his declaration in support of the opposition, Defendants’ counsel states that “[m]y office received service of Plaintiffs’ Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for a New Trial (the ‘Motion’) on November 1, 2024. Upon my initial review of the moving papers, it appeared to me that Plaintiffs had included a complete certified transcript of trial via the declaration of Plaintiffs’ counsel. However, upon closer review, I noted that several portions of the proceedings were missing from the transcripts Plaintiffs submitted.” (Haeffele Decl., ¶ 3.) Defendants’ counsel states that “[i]mmediately after learning of the deficiencies in the official transcripts, on November 7, 2024, my office contacted the court reporting service to expedite the full certified transcript of trial. However, we were told that the transcript could not be processed by November 13. My office then requested, at minimum, that the court reporting service send us the missing portions of the transcript. We were told that the court reporting service remained unable to fulfill that request prior to November 13.” (Haeffele Decl., ¶ 4.) Defendants’ counsel states that “[d]uring trial, my office requested daily ‘rough’ trial transcripts from the Court reporter. The Court reporter provided my office with those ‘rough’ transcripts, and my office has maintained them. True and correct copies of the ‘rough’ trial transcripts are attached hereto for the Court’s review.” (Haeffele Decl., ¶ 6.) Defendants assert that the Court may consider the “rough” trial transcripts pursuant to Code of Civil Procedure section 660, subdivision (a). Defendants also request that “the court reporters attend the hearing of the Motion and read their notes at the hearing pursuant to Code of Civil Procedure section 660(a),” so that the Court may have “the necessary information to rule on the Motion.” (Haeffele Decl., ¶ 5.) Code of Civil Procedure section 660, subdivision (a) provides as follows:

“On the hearing of the motion, reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of the report or if there be no such report or certified transcript, to proceedings occurring at the trial that are within the recollection of the judge; when the proceedings at the trial have been phonographically reported, but the reporter’s notes have not been transcribed, the reporter shall, upon request of the court or either party, attend the hearing of the motion and read his or her notes, or such parts thereof as the court, or either party, may require.”

In the reply, Plaintiffs do not oppose Defendants’ request that the Court consider the “rough” trial transcripts or Defendants’ request that the court reporters attend the hearing on the instant motion. In light of the foregoing, the Court will consider Defendants’ “rough” trial transcripts and grants Defendants’ request that the court reporters attend the hearing on the instant motion.[1]

In addition, Plaintiffs state that they seek an order “authorizing Plaintiff’s [sic] late filed reply in support of Plaintiffs’ Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for New Trial…” (Plaintiffs’ Declaration of Good Cause at p. 2:1-3.) Plaintiffs’ counsel states that “[o]n November 13, 2024, my office received Defendants’ Opposition to Plaintiffs’ Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for New Trial. Defendants also served me with a request asking the court for a 10 day extension to supplement their reply [sic]…I accordingly decided to wait a few days and see if the request would be granted as I did want to file a reply and another reply after Defendants Opposition was supplemented…Seeing that no action was taken by the court in relation to Defendants’ request, I am concurrently filing Plaintiffs’ reply.” (Alaric-Lorenzo Decl., ¶¶ 2-4.)

Based on Plaintiffs’ counsel’s November 18, 2024 declaration and Code of Civil Procedure section 659a, the Court grants Plaintiffs’ request that the Court consider Plaintiffs’ untimely reply.

Plaintiffs first assert that “the defamation per se verdict was not supported by substantial evidence.” (Mot. at p. 2:18-20.) “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a tendency to injure or causes special damage.” (Briganti v. Chow (2019) 42 Cal.App.5th 504, 509 [internal quotations omitted].)

As an initial matter, the Court notes that a Special Verdict Form (Mandi Martinez) was filed in this matter on August 16, 2024. As to the defamation claim, the first question on the Special Verdict Form is, “1. Did Deborah Padilla make the following statement to a person other than Mandi Martinez: ‘She took off with all her stuff and who knows what else’?” The jury answered “No” to such question. (See August 16, 2024 Special Verdict Form (Mandi Martinez).) In addition, the Court notes a Special Verdict Form (Michael Yessian) was also filed on August 16, 2024. As to the defamation claim, the first question on the Special Verdict Form is, “1. Did Deborah Padilla make the following statement to a person other than Michael Yessian: ‘Is there anything in your bag, because the police are on their way?’” The jury answered “No” to such question. (See August 16, 2024 Special Verdict Form (Michael Yessian).)

In the instant motion, Plaintiffs contend that “[t]he evidence at trial confirmed that Deborah told Plaintiff Yessian that Plaintiff Martinez had left the store with her stuff and whatever else she took.” (Mot. at p. 2:26-27.) In support of this assertion, Plaintiffs cite to their “Trial Exhibit 1.” In the instant motion, Plaintiffs do not specify what their “Trial Exhibit 1” is.

Plaintiffs appear to point to the following statements contained on “Trial Exhibit 1,” which has the heading “Start Store Audio”: “Yessian: And she said, I said, yes, and she said well, she took off with all her stuff and who knows what else. Padilla: I didn’t say--I said she took off.” (Alaric-Lorenzo Decl., ¶ 2, Ex. 1 at p. 3:5-9, emphasis added.) Plaintiffs also note that Ms. Padilla stated “She had a basket.” (Id. at p. 3:13.) Plaintiffs contend that “when Padilla admits to have said Martinez ‘took off’, she goes on to explain that Martinez ‘had a basket.’…This was clearly her explanation for why she made the statement about Martinez taking off with her stuff and ‘who knows what else.’” (Mot. at p. 3:4-7.) But Plaintiffs do not appear to point to any evidence showing that Ms. Padilla purportedly “told Plaintiff Yessian that Plaintiff Martinez had left the store with her stuff and whatever else she took.” (Mot. at p. 2:26-27, emphasis added.) As set forth above, Plaintiffs admit that Ms. Padilla stated, “I said she took off.”

Plaintiffs also contend that “Deborah Padilla is…a liar,” (Mot. at p. 3:9), but again, Plaintiffs do not appear to cite to any evidence demonstrating that Ms. Padilla purportedly “told Plaintiff Yessian that Plaintiff Martinez had left the store with her stuff and whatever else she took,” or that such purported statement was false. (Mot. at p. 2:26-27, emphasis added.) As set forth above, the first two elements of a defamation claim are “(1) a publication that is (2) false…” (Briganti v. Chow, supra, 42 Cal.App.5th at p. 509.)

Plaintiffs also argue in the instant motion that “[t]he evidence at trial confirmed that Deborah Padilla told Plaintiff Michael Yessian to remove any stolen items from his bag as the Police were on their way.” (Mot. at p. 3:17-18.) But in support of this assertion, Plaintiffs appear to cite to the following testimony from Ms. Padilla at trial: “Q[.] SO YOU ARE ADMITTING THAT MR. YESSIAN WAS CORRECT WHEN HE SAID YOU SPOKE TO HIM ABOUT THE POLICE; CORRECT? A[.] I DID NOT SPEAK TO HIM. I’M THINKING HE’S HEARING IT OVER OUR INTERCOM. I JUST GO IT WASN’T FOR HER. THAT’S HOW -- I DIDN’T SAY THE POLICE WERE THERE. HE’S SAYING THE POLICE WERE THERE AND I GO IT WASN’T FOR YOU AND I’M THINKING HE’S MEANING THE ALARM. Q[.] BUT YOU TESTIFIED THAT THE ALARM HAD A DRUG CODE, IT BASICALLY WAS TO ALERT YOU THAT SOMEONE HAD DONE DRUGS IN THE STORE; RIGHT? A[.] RIGHT. Q[.] IS THAT THE SAME ALARM FOR WHEN THE POLICE WERE CALLED TO THE STORE? A[.] I DON’T KNOW IF THE POLICE WERE CALLED. I JUST KNOW I DID NOT SAY THOSE AND I JUST GO IT WASN’T FOR YOU. I MEAN, HE’S SAYING THAT I SAID WE CALLED THE POLICE ON HER. WE DID NOT. I DID NOT.” (Alaric-Lorenzo Decl., ¶ 2, Ex. A (Reporter’s Partial Transcript of Proceedings Tuesday August 13, 2024) at pp. 71:27-72:15.)

As noted by Defendants, “Padilla denied ever making the statement.” (Opp’n at p. 11:11.)

Plaintiffs do not appear to show that “Deborah Padilla told Plaintiff Michael Yessian to remove any stolen items from his bag as the Police were on their way,” (Mot. at p. 3:17-18) and accordingly do not show that any such purported statement was false.

Based on the foregoing, the Court does not find that Plaintiffs have shown that there is no substantial evidence in support of the verdict on Plaintiffs’ defamation claims.

Next, Defendants assert that “the Unruh Act verdict was not supported by substantial evidence.” (Mot. at p. 5:23-24.) “The Unruh Civil Rights Act, codified at [Civil Code section 51] was enacted to prohibit discriminatory conduct by individual proprietors and private entities offering goods and services to the general public.” (Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, 305 [internal quotations omitted].) The elements of a claim for violation of the Unruh Civil Rights Act are: (1) that defendant denied/aided or incited a denial of/discriminated or made a distinction that denied full and equal accommodations/advantages/facilities/privileges/services to plaintiff; (2) that a substantial motivating reason for defendant’s conduct was its perception of plaintiff’s protected characteristic; or that the protected characteristic of a person whom plaintiff was associated with was a substantial motivating reason for defendant’s conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060.)

The Court notes that Question 11 of the Mandi Martinez Special Verdict Form provides, “11. Did CVS through the conduct of Deborah Padilla and/or William Pineda deny, discriminate or make a distinction that denied full and equal facilities, privileges, and/or services to Mandi Martinez?” The jury answered “No” to such question. (See August 16, 2024 Special Verdict Form (Mandi Martinez).) In addition, Question 11 of the Michael Yessian Special Verdict Form provides, “11. Did CVS through the conduct of Deborah Padilla and/or William Pineda deny, discriminate or make a distinction that denied full and equal facilities, privileges, and/or services to Michael Yessian?” The jury answered “No” to such question. (See August 16, 2024 Special Verdict Form (Michael Yessian).)

In the instant motion, Plaintiffs argue that “CVS’ employees including Deborah Padilla, denied, discriminated or made a distinction that denied full and equal accommodations, facilities, privileges or services to Plaintiffs.” (Mot. at p. 6:14-15.) More specifically, Plaintiffs assert that “Defendants harassed Plaintiffs and falsely accused them of stealing. Because of this, Plaintiff Martinez was denied access to the restroom and accused of theft while Mr. Yessian on his part, was also accused of theft and was forced to exit the store.” (Mot. at p. 6:16-19.)

Plaintiffs appear to cite to page 2:6-11 of Trial Exhibit 1, which provides, “Martinez: Okay, so was I told the bathroom was being cleaned because you were discriminating because I’m a short Mexican with a big purse, from what she told my husband? Pineda: What are you talking about? The restroom was getting cleaned at the time.” (Alaric-Lorenzo Decl., ¶ 2, Ex. 1 at p. 2:6-11.) Mr. Pineda further stated that “[t]here was a gentleman that had been kicked out for using heroin in our bathroom, and we were having an issue…” (Id. at p. 5:23-25.) Plaintiffs argue Mr. Pineda “testified that had [sic] no details to support his made up story that a man was doing heroin in the restroom.” (Mot. at p. 6:23-25.) As an initial matter, Plaintiffs do not appear to cite to any evidence demonstrating that Mr. Pineda “made up” the fact someone had been using heroin in the bathroom. Plaintiffs cite to pages “12:27-28, 13:1-28, 14:1-28” of the August 8, 2024 trial transcript (Mot. at p. 6:24-25), but there is no page “12:27-28” on this transcript, and pages 13:1-25 and 14:1-25 of the transcript do not contain any testimony concerning the restroom issue. (See Alaric-Lorenzo Decl., ¶ 2, Ex. A (Reporter’s Transcript of Partial Trial Proceedings Direct Examination of Michael Yessian Thursday, August 8, 2024).)

Plaintiffs argue that “[t]he restroom at the store was available and Pineda simply did not allow Mandi to use it,” (Mot. at pp. 6:28-7:1), but do not appear to cite to any evidence supporting such proposition. Moreover, as noted by Defendants, the trial transcript from August 8, 2024 provides, inter alia, “Q. Okay. Do you remember what the store manager said to you and Mandi or to you when you went back into the store? A. He apologized and that he, you know, didn’t -- had no clue what we were even talking about at first, you know, and then he said he never thought she was stealing and that the police weren’t called on me; that they were called but on a separate matter, and that’s when he told us about the gentleman using the heroin in the bathroom.” (Alaric-Lorenzo Decl., ¶ 2, Ex. A (Reporter’s Transcript of Partial Trial Proceedings Direct Examination of Michael Yessian Thursday, August 8, 2024) at p. 30:22-31:7.)

As set forth above, Plaintiffs also assert that Defendants “falsely accused them of stealing.” (Mot. at p. 6:17.) In support of the assertion that there were “false allegations of theft,” Plaintiffs appear to cite to statements from the following portion of Trial Exhibit 1: “Yessian: I said it, she asked me if I needed help. I said I was looking for my wife and she said, is she a short Mexican girl with a big purse? Pineda: Uh-huh. Yessian: And she said, I said, yes, and she said well, she took off with all her stuff and who knows what else. Padilla: I didn’t say--I said she took off. Yessian: Yes you did, and then she said, well, is there anything in your bag, because-- Padilla: She had a basket. Yessian: Is there anything in your bag, because the police are on their way. I said, fine, have the police on their way, because there’s--why would there be anything like that, we haven’t bought anything.” (Alaric-Lorenzo Decl., ¶ 2 Ex. 1 at p. 2:24-3:18.) But Plaintiffs do not appear to cite to evidence clearly demonstrating that Plaintiffs were “falsely accused” of stealing. As discussed in further detail above, Plaintiffs cite to Ms. Padilla’s statement that “I said she took off.” (Alaric-Lorenzo Decl., ¶ 2, Ex. 1 at p. 3:8-9.) Plaintiffs do not show that Ms. Padilla testified that Ms. Martinez “had left the store with her bag and who knows what else.” (Mot. at p. 7:10-12.) Moreover, Plaintiffs do not appear to provide evidence showing that they were “denied any facility or service.” (Opp’n at p. 10:9.)

The Court does not find that Plaintiffs have shown that there is no substantial evidence in support of the verdict on Plaintiffs’ Unruh Act claims.

Lastly, Plaintiffs argue that their “third cause of action for intentional infliction of emotional distress is subject to summary judgment or adjudication because there is no genuine dispute of material fact and Plaintiff is entitled to judgment as a matter of law.” (Mot. at p. 9:18-20.) As an initial matter, Plaintiffs’ notice of motion indicates that Plaintiffs move “for judgment in its [sic] favor on all claims notwithstanding the verdict rendered by the jury on August 16, 2024” (Notice of Motion at p. 1:23-25), not that Plaintiffs move for summary judgment or summary adjudication.

Moreover, the Court finds that any purported motion for summary judgment and/or summary adjudication is procedurally improper. The Court notes that procedural issues include but are not limited to the fact that a motion for summary judgment “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise,” and that “[t]he supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Code Civ. Proc., § 437c, subds. (a)(3); (b)(1).) The instant motion does not comply with these requirements.

Moreover, to the extent Plaintiffs’ motion for judgment notwithstanding the verdict also concerns Plaintiffs’ cause of action for intentional infliction of emotional distress, the Court does not find that Plaintiffs have shown that there is no substantial evidence in support of the verdict on such cause of action.

Question 14 of the Mandi Martinez Special Verdict Form provides, “14. Did Deborah Padilla engage in any conduct towards Mandi Martinez that was outrageous, as that term has been defined in the jury instructions?” The jury answered “No” to such question. (See August 16, 2024 Special Verdict Form (Mandi Martinez).) In addition, Question 14 of the Michael Yessian Special Verdict Form provides, “Did Deborah Padilla engage in any conduct towards Michael Yessian that was outrageous, as that term has been defined in the jury instructions?” The jury answered “No” to such question. (See August 16, 2024 Special Verdict Form (Michael Yessian).)

“[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct, to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1108 [internal quotations and reference to [Citation.] omitted].)

In the instant motion, Plaintiffs contend that “Defendants engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress when Deborah falsely accused Plaintiffs of theft.” (Mot. at p. 10:1-2.) Again, Plaintiffs cite to Trial Exhibit 1, but again, such Exhibit provides, inter alia, “Yessian: I said it, she asked me if I needed help. I said I was looking for my wife, and she said, is she a short Mexican girl with a big purse? Pineda: Uh-huh. Yessian: And she said, I said, yes, and she said well, she took off with all her stuff and who knows what else. Padilla: I didn’t say--I said she took off.” (Alaric-Lorenzo Decl., ¶ 2, Ex. 1 at p. 2:24-3:9, emphasis added.)

In addition, in the opposition, Defendants assert that “Martinez cannot establish either intent or recklessness by Padilla either. Padilla denied any such mens rea, foreclosing JNOV.” (Opp’n at p. 13:28-14:1.) Defendants cite to the following trial testimony: “Q[.] DID YOU EVER HAVE ANY TYPE OF DESIRE TO CAUSE MS. MARTINEZ ANY EMOTIONAL DISTRESS? A[.] NO. Q[.] DID YOU EVER HAVE ANY DESIRE TO CAUSE MR. YESSIAN ANY TYPE OF EMOTIONAL DISTRESS? A[.] NO. Q[.] DID YOU EVER HAVE A DESIRE TO CAUSE THEM HARM IN ANY WAY? A[.] ABSOLUTELY NOT.” (Alaric-Lorenzo Decl., ¶ 2, Ex. A (Reporter’s Partial Transcript of Proceedings Tuesday August 13, 2024) at pp. 57:19-27.) Plaintiffs do not appear to respond to this point in the reply.

Based on the foregoing, the Court does not find that Plaintiffs have shown that “it appears from the evidence…that there is no substantial evidence in support” of the verdict on Plaintiffs’ claims. (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68.) Accordingly, the Court denies Plaintiffs’ motion for judgment notwithstanding the verdict.

“1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.”

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)

First, Plaintiffs argue that “a new trial is warranted because there now exists, newly discovered evidence, material for Plaintiffs, which Plaintiffs could not, with reasonable diligence, have discovered and produced at the trial (CCP § 657(4)) and which constitutes a surprise, which ordinary prudence could not have guarded against (CCP § 657(3).” (Mot. at p. 11:5-8.)

As an initial matter, in the opposition, Defendants cite to Code of Civil Procedure section 658, which provides that “[w]hen the application is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.” As noted by Defendants, Plaintiffs “did not submit an affidavit justifying their claims of surprise, newly discovered evidence, and irregularity in the proceedings. The closest they come is submitting a declaration from counsel that just attaches exhibits.” (Opp’n at p. 15:24-26.) However, Defendants do not appear to address the portion of Code of Civil Procedure section 658 providing that “[w]hen the application is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.” (Emphasis added.) Defendants do not appear to assert that Plaintiffs motion was not “made on the minutes of the court.”

In the motion, Plaintiffs assert that “[a]t trial, Hillary Williams testified that she was the person who made the following statement: ‘[C]ustomers’ were return customers who have been confirmed to have stolen in the past.” (Mot. at p. 11:8-10.) Plaintiffs cite to, inter alia, the following testimony: “Q[.] SO THE FINDING THAT YOU HAD ON PAGE 9 -- IF YOU PLEASE TURN TO PAGE 9 BOTTOM LEFT? WHERE IT SAYS QD SPOKE TO THE SM ADAM WILLIAMS PINEDA AND HE STATED THAT THE CUSTOMERS WERE RETURN CUSTOMERS WHO HAVE BEEN CONFIRMED TO HAVE STOLEN IN THE PAST. QD ASKED HER SM WHAT EVIDENCE THERE WAS AND THERE WASN’T ANYTHING SUFFICIENT. THIS IS A FINDING OF FACT; CORRECT? MR. FEARS: OBJECTION. MISCHARACTERIZES HER TESTIMONY AND THE DOCUMENT. THE COURT: SUSTAINED. BY MR. KISOB: Q[.] THIS IS A STATEMENT THAT IS INCLUDED IN EXHIBIT NO. 3 WHICH IS THE SALES FORCE DOCUMENT; CORRECT? A[.] ARE YOU REFERRING TO THE COMMENT AT 6:59 P.M.? IS THAT WHAT YOU’RE REFERRING TO? Q[.] YES. A[.] THOSE WERE MY ROUGH NOTES. THEY WERE NOT FINDING OF FACT. THOSE WERE MY ROUGH NOTES. Q[.] SO WHEN YOU REVIEWED FINDINGS OF FACT WITH MS. DIEP, YOU DID NOT REVIEW THIS PORTION OF THIS DOCUMENT THAT I JUST READ OUT? A[.] THE PORTION AT 6:59 P.M., I DID NOT REVIEW THAT WITH HER BECAUSE THOSE ARE MY ROUGH NOTES. Q[.] CAN YOU POINT TO ME IN EXHIBIT NO. 3 WHAT PART OF THIS DOCUMENT THAT YOU REVIEWED WITH MS. DIEP? A[.] I DIDN’T REVIEW THIS DOCUMENT AT ALL WITH MS. DIEP. WE TALKED ABOUT THE DETAILS OF MY FINDINGS ON THE PHONE. I DIDN’T REVIEW THE DOCUMENT NOTE.” (Alaric-Lorenzo Decl., ¶ 2, Ex. A (Reporter’s Partial Transcript of Proceedings Wednesday, August 14, 2024) at pp. 7:26-8:25.)

Plaintiffs contend that they “could never have attributed this statement to Hillary Williams because the store’s Manager, Pineda, had testified under oath during his deposition that he was the maker of the statement, and this was long before trial.” (Mot. at p. 11:14-16.) In support of this assertion, Plaintiffs appear to cite to the following testimony from a August 14, 2024 trial transcript: “Q[.] QUESTION: OKAY. SO THIS SAYS QD WHICH HER ABOVE [sic] REFERS TO QUYEN DIEP SPOKE TO THE SM STORE MANAGER ADAM WILLIAM PINEDA AND HE STATED THAT CUSTOMERS WERE RETURN CUSTOMERS WHO HAVE BEEN CONFIRMED TO HAVE STOLEN IN THE PAST. QD ASKED THE SM WHAT EVIDENCE THERE WAS AND THERE WASN’T ANYTHING SUFFICIENT.” (Alaric-Lorenzo Decl., ¶ 2, Ex. A (Reporter’s Partial Transcript of Proceedings Wednesday, August 14, 2024) at pp. 7:27-8:4.)

Plaintiffs appear to assert that the foregoing evidence pertaining to Hillary Williams is, inter alia, “[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.” (Code Civ. Proc., § 657(4).) However, the Court does not find that Plaintiffs have made any showing that they could not, with reasonable diligence, have discovered Ms. Williams’ statement and produced evidence of it at trial.

Plaintiffs also contend that Defendants “failed to reveal the real author of the statement and for that reason should be estopped from claiming a statute of limitations defense.” (Mot. at p. 13:26-28.) This argument is confusing, and Plaintiffs do not appear to provide any analysis as to why this is purportedly grounds for a new trial under Code of Civil Procedure section 657.

Moreover, Defendants assert that “Plaintiffs were aware of the statement for years before trial but failed to investigate it. They cannot show that they exercised the requisite diligence when they knew about the supposedly ‘new evidence’ but chose not to investigate it.” (Opp’n at p. 17:8-10.) Defendants’ counsel states in his supporting declaration that “[o]n June 11, 2020, my office served on counsel for Plaintiffs, in response to requests for production propounded by Plaintiffs, a Salesforce document Bates labelled CVS – 000019 to CVS – 000028.” (Haeffele Decl., ¶ 2.) Defendants assert that Plaintiffs “were aware of the allegedly defamatory statement, at the latest, on June 11, 2020, when CVS produced Williams’ Salesforce report, but took no steps to ascertain the source of the statement or otherwise investigate its circumstances in the years before trial.” (Opp’n at p. 17:1-4, emphasis omitted.) Defendants state that “[a]t no point in the litigation did Plaintiffs depose or request to depose CVS employees Hillary Williams or Deborah Padilla.” (Haeffele Decl., ¶ 8.) This point does not appear to be addressed or disputed by Plaintiffs in their reply.

Plaintiffs also contend that “Hillary Williams’ confession about being the sole originator of the statement was a surprise which ordinary prudence could not have guarded against.” (Mot. at p. 11:24-25, emphasis omitted.) But Plaintiffs do not appear to provide evidence supporting such proposition. In Fletcher v. Pierceall (1956) 146 Cal.App.2d 859, 866, cited by Defendants, the Court of Appeal noted that “[f]rom a very early date—1866—it has been held that surprise, as a ground for a motion for a new trial, should be looked on with ‘suspicion.’…As pointed out in 3 Witkin on California Procedure, page 2057, a motion on this ground ‘is seldom successful’ because the moving party to be entitled to a granting of the motion must make a showing of injury, a showing of diligence, and a showing that he did not unduly delay seeking redress.” The Court does not find that Plaintiffs have shown how they were allegedly injured because Hillary Williams purportedly made the subject statement instead of Mr. Pineda. In addition, the Court does not find that Plaintiffs have provided evidence demonstrating their diligence and that they “did not unduly delay seeking redress.” (Fletcher v. Pierceall, supra, 146 Cal.App.2d at p. 866.)

In the motion, Plaintiffs also assert that “Plaintiffs proposed the following instruction (‘Adoptive Admissions CACI Jury Instruction No. 213): The court refused to give the instruction.” (Mot. at p. 12:15-16.) Plaintiffs appear to contend that this is an “error in law, occurring at the trial and excepted to by Plaintiffs as well as irregularity in the proceedings of the Court and orders of the Court or abuse of discretion by which Plaintiffs were prevented from having a fair trial (CCP § 657(1)).” (Mot. at p. 12:11-13.)

On July 19, 2024, the Court issued a minute order providing, inter alia, that “[t]he Court rules on Jury Instructions as follows: 213 objection to proposed instruction 213 is sustained without prejudice.” The Court notes that CACI No. 213 provides as follows:

“You have heard evidence that [name of declarant] made the following statement: [describe statement]. You may consider that statement as evidence against [name of party against whom statement was offered] only if you find that all of the following conditions are true:

1. The statement was made to [name of party against whom statement was offered] or made in [his/her/nonbinary pronoun] presence;

2. [Name of party against whom statement was offered] heard and understood the statement;

3. [Name of party against whom statement was offered] would, under all the circumstances, naturally have denied the statement if [he/she/nonbinary pronoun] thought it was not true;

4. [Name of party against whom statement was offered] could have denied it but did not.

If you decide that any of these conditions are not true, you must not consider for any purpose either the statement or [name of party against whom statement was offered]’s response…”

Plaintiffs contend that here, “Plaintiff Yessian accused Defendant Padilla of saying ‘is there anything in your bag because the Police are on their way.’…The statement was made in the presence of Padilla as per the audio recording…Padilla did not deny making the statement...” (Mot. at p. 12:20-23.) In support of this assertion, Plaintiffs appear to cite to the following portion of Trial Exhibit 1: “Yessian: Is there anything in your bag, because the police are on their way. I said, fine, have the police on their way, because there’s--why would there be anything like that, we haven’t bought anything. Pineda: Uh-huh, right.” (Alaric-Lorenzo Decl., ¶ 2, Ex. 1 at p. 3:14-19.) Plaintiffs contend that “[t]he adoptive admission instruction would have permitted the jury to conclude that the defamatory statements were indeed made and published by Padilla which would have resulted in victory for Plaintiffs.” (Mot. at p. 12:24-26.)

In the opposition, Defendants note that “an adoptive admission…is an exception to the hearsay rule.” (In re Masters (2019) 7 Cal.5th 1054, 1074.) Civil Code section 1221, which concerns “adoptive admission,” provides that “[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Defendants assert that “[h]ere, Yessian’s remarks and Padilla’s alleged lack of response were presented to the jury without a hearsay objection (Kisob Decl., Ex. A [Tr. Ex. 1])…A jury instruction on the hearsay exception of adoptive admissions would have been both irrelevant and confusing to the jury.” (Opp’n at pp. 17:27-18:3.) Plaintiffs do not appear to address this point in their reply.
Defendants also assert that “the Court was correct that the evidence did not support giving the adoptive admission instruction because Padilla was not ‘afford[ed] fair opportunity to deny the accusation.’” (Opp’n at p. 18:4-5.) Defendants note that “[f]or the adoptive admission exception to apply, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether a defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 83.) Indeed, Plaintiffs do not appear to provide any evidence demonstrating that Ms. Padilla was afforded a fair opportunity to deny that she said “[i]s there anything in your bag, because the police are on their way.” (Alaric-Lorenzo Decl., ¶ 2, Ex. 1 at p. 3:14-15.) Moreover, in the reply, Plaintiffs do not appear to dispute that Ms. Padilla was not afforded a fair opportunity to deny the accusation.

Plaintiffs also argue in the motion, “when on 8/06/24, the court dismissed the defamation claim based on the statement made by William Pineda…Plaintiffs faced a surprise as Defendants were attacking the claim for the first time on the eve of trial and Plaintiffs did not have the opportunity to produce evidence that the statement had been republished during the relevant statute of limitation period.” (Mot. at p. 12:6-10.) It appears Plaintiffs are referring to the Court’s August 6, 2024 Order on Defendants’ “Non-Statutory Motion for Judgment on the Pleadings or, in the Alternative, Motion in Limine to Bar Evidence of Defamation Cause of Action Barred by Statute of Limitations.”

As an initial matter, the Court does not find that Plaintiffs have shown that the August 6, 2024 Order is somehow a “surprise, which ordinary prudence could not have guarded against.” (Code Civ. Proc., § 657(3).) As discussed, a motion on the ground of “surprise” “is seldom successful because the moving party to be entitled to a granting of the motion must make a showing of injury, a showing of diligence, and a showing that he did not unduly delay seeking redress.” (Fletcher v. Pierceall, supra, 146 Cal.App.2d at p. 866 [internal quotations omitted].) The Court does not find that Plaintiffs have made any showing of diligence or that they did not unduly delay in seeking redress.

To the extent Plaintiffs are arguing that the Court’s August 6, 2024 Order was an “error of law,” Code of Civil Procedure section 657(7) concerns an “[e]rror in law, occurring at the trial and excepted to by the party making the application.” Plaintiffs do not articulate how the August 6, 2024 Order purportedly occurred “at the trial,” or why there was any purported “error in law” in the August 6, 2024 Order. Plaintiffs do not appear to discuss the specific findings of the Order.

Plaintiffs may also be arguing that the August 6, 2024 Order was an “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” (Code Civ. Proc., § 657(1).) Plaintiffs argue that “[a]s admitted to by Hillary Williams during trial, the Salesforce document…was made available to a team of CVS’ employees…If just one new person saw it within one year of the filing of the TAC, then Defendants’ statute of limitations defense would have been obliterated. Plaintiffs must be allowed to show that Pineda’s statements[3] were republished to other CVS’ employees within one year of the filing of the TAC.” (Mot. at p. 13:3-7.)

As an initial matter, Plaintiffs do not clearly articulate how this demonstrates that the Court’s August 6, 2024 Order was an “irregularity in the proceedings of the court,” or “any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” (Code Civ. Proc., § 657(1).) Moreover, Plaintiffs do not appear to point to any evidence demonstrating that “one new person saw [the Salesforce document] within one year of the filing of the TAC,” (Mot. at p. 13:5), Plaintiffs just appear to speculate as to this issue.

Lastly, Plaintiffs argue that “CACI 1708 deals with Coerced Self-Publication. This is an instruction which would allow the jury decide [sic] whether or not Plaintiffs were in these circumstances forced to republish Pineda’s or Padilla’s statements. The court refused to give the instruction.” (Mot. at p. 15:16-18.) Plaintiffs do not provide any argument or analysis as to why this is purportedly grounds for a new trial under Code of Civil Procedure section 657.[4]

Based on the foregoing, the Court does not find that Plaintiffs have shown that any grounds exist that would warrant a new trial. The Court denies Plaintiffs’ alternative motion for a new trial.

Based on the foregoing, Plaintiffs’ motion for judgment notwithstanding the verdict or in the alternative, motion for a new trial is denied.

[1]Moreover, the Court notes that as a practical matter, the instant Order does not cite to Defendants’ “rough” trial transcripts.

[2]As set forth above, Code of Civil Procedure section 659a provides, inter alia, that “[t]he moving party shall have five days after that service to file any reply brief and accompanying documents. These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.” The Court notes that the proof of service attached to Defendants’ opposition indicates that the opposition was served on November 13, 2024. Five days after November 13, 2024 is November 18, 2024. An additional ten days after November 18, 2024 is November 28, 2024. Plaintiffs’ reply was filed on November 22, 2024, before November 28, 2024.

[3]Plaintiffs’ reference to “Pineda’s statements” is confusing, as Plaintiffs appear to also argue in the motion that the subject statements were made by Hillary Williams.

[4]The Court notes that Plaintiffs also appear to raise certain new arguments for the first time in their reply, such as that Plaintiffs should be permitted to amend their complaint to conform to proof at trial. The Court notes that “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.) Thus, the Court declines to consider the arguments raised for the first time by Plaintiffs in the reply.

Superior Court of California

County of Los Angeles

Department 50