Judge: Theresa M. Traber, Case: 22STCV23140, Date: 2023-10-25 Tentative Ruling
Case Number: 22STCV23140 Hearing Date: February 26, 2024 Dept: 47
Berenice
Ceja v. Rahn Industries, Inc., et al., Case No. 22STCV23140
TENTATIVE
RULINGS ON MOTIONS IN LIMINE
Plaintiff’s MIL # 1: seeking to exclude any evidence, testimony,
or argument regarding Plaintiff’s failure to mitigate her damages.
TENTATIVE RULING: DENIED.
Plaintiff argues that all evidence regarding
her failure to seek alternate employment should be excluded because she is not
seeking to recover economic damages, including lost wages, but only emotional
distress damages. It is undisputed,
however, that Plaintiff’s inability to secure new employment that would allow
her to pay her rent and bills has contributed to her post-termination
stress. Thus, if Defendant can prove the
elements of failure to mitigate – that there were substantially similar jobs
available to Plaintiff after her termination, that she failed to make
reasonable efforts to secure such employment, and the amount she would have
earned if she did so – this evidence can be used to rebut Plaintiff's showing
of emotional distress arising from her financial difficulties.
Plaintiff’s MIL # 2: seeking to exclude admission of any evidence
produced by Defendant after the discovery deadline.
TENTATIVE RULING: DENIED.
In general, a party who has responded to formal written discovery has no
affirmative duty to supplement its responses when new information comes into
its possession. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1318–1319,
1328.) “[A]bsent unusual circumstances,
such as repeated and egregious discovery abuses,” courts will not impose an
evidentiary sanction for a failure to disclose unless there has been a
“willful” failure to disclose. (Id.,
at p. 1327.)
Here, Plaintiff seeks to exclude Defendant’s
discovery answers provided in response to Plaintiff’s October 2022 interrogatories
but not served as supplemental responses until February 5, 2024, just after the
discovery cut-off date, to expand on May 18, 2023 supplemental answers that
were provided after substantial meet-and-confer efforts and an informal discovery
conference. The suggestion in the moving
papers is that Defendants intentionally withheld certain information and
documents until the last possible moment to deprive Plaintiff of an opportunity
to explore the late disclosed information through discovery. But this insinuation is dispelled by
Defendant’s account of how new information was revealed to both parties in
depositions conducted in January 2024.
Thus, it appears that the new theory of after-acquired evidence advanced
by Defendant was devised based on the deposition testimony of Marcela Rosales
on January 4, 2024, and on the documents Plaintiff’s counsel showed the witness
during her deposition. (Opposition, p.
3.) Similarly, the new witnesses in
Defendant’s supplemental responses were identified by Defendant as having
relevant information for trial in response to the “me too” evidence offered by
Rosales on January 4 and by another recent deponent, Mercy Miranda, in her
January 26, 2024 deposition. Likewise,
the newly produced documents are largely emails involving Ms. Miranda and,
thus, appear to have been designated as relevant after her recent deposition
testimony. Given this timeline of recent
discovery, Defendant’s late disclosure of the new theory of after-acquired
evidence, the new witnesses, or the new Miranda documents does not reflect a
willful failure to disclose information that should have been provided months
before, but rather a late supplementation designed to respond to newly
developed evidence.
While denying the motion, the Court cautions
that Defendant’s newly minted theory of after-acquired evidence, if proven,
would only affect Plaintiff’s right to seek emotional distress damages for any
period after January 4, 2024. Plaintiff
alleges that she suffered emotional distress when she was subjected to sexual
harassment from November 2021 through January 2022 and then fired on February
1, 2022, and that her distress continued after the termination, but she is not
seeking post-termination economic damages.
Since a successful after-acquired evidence defense only cuts off damages
for the period after the employer discovers evidence of an offense that would
have led to termination, and the discovery here apparently occurred on January
4, 2024, the defense can only affect Plaintiff’s right to secure recent and
future emotional distress damages.
Defendants’
MIL #1 – to bifurcate punitive
damages and exclude evidence of Defendant’s financial condition until after the
jury makes rulings on liability, compensatory damages and makes a finding of
fraud, malice or oppression under Civil Code § 3294.
TENTATIVE
RULING: GRANTED, without opposition, pursuant
to Civil Code § 3295(d). Evidence of
Defendant’s financial condition will be excluded from the first phase of trial
to the extent that it is relevant solely to a potential award of punitive
damages. The second phase of trial on
the amount of punitive damages, if any, will follow immediately after the first
if the jury finds Defendant acted with fraud, malice or oppression under Civil
Code § 3294 such that punitive damages are warranted.
Defendants’ MIL #2 and MIL #3: seeking to exclude improper “me too” evidence
of Marcela Rosales and Mercy Miranda.
TENTATIVE
RULING: DENIED.
“California
courts have held so-called ‘me too’ evidence, that is, evidence of . . . bias
against employees other than the plaintiff, may be admissible evidence in
discrimination and harassment cases. (See Pantoja [v. Anton
(2011)] 198 Cal. App. 4th 87, 129 Cal. Rptr. 3d 384; Johnson v. United
Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 93
Cal.Rptr.3d 198 (Johnson).) The relevance of evidence concerning conduct
toward nonparty employees is inherently ‘”fact based and depends on many
factors, including how closely related the evidence is to the plaintiff's
circumstances and theory of the case.”’ (Johnson, supra, at p. 767, 93
Cal.Rptr.3d 198.) ‘[S]imilar considerations are involved in balancing the
probative value of the evidence against its prejudicial effect.’ (Ibid.)
‘Me too’ evidence is therefore not subject to any per se rule of exclusion, and
may be admissible to prove a defendant's motive or intent even where the
conduct occurred outside the plaintiff's presence and at times other than when
the plaintiff was employed. (Pantoja, supra, at pp. 115-116, 129
Cal.Rptr.3d 384; see also Sprint/United Mgmt. Co. v. Mendelsohn (2008)
552 U.S. 379, 381, 388, 128 S.Ct. 1140, 170 L.Ed.2d 1 [evidence that employer
discriminated against employees other than plaintiff ‘is neither per se
admissible nor per se inadmissible,’ and instead ‘requires a fact-intensive,
context-specific inquiry’].)” (Meeks
v. Autozone, Inc. (2018) 24 Cal. App. 5th 855, 871.)
Through
its MIL #3, Defendant seeks to exclude testimony from its Human Resources
Manager, Marcela Rosales, who testified in deposition that employees were
afraid to complain for fear of retaliation, that she witnessed Defendant’s
owner, John Hancock, terminate employees after they had lodged a complaint, and
that Mr. Hancock and his immediate subordinates regularly harassed and
denigrated women and treated them like second-class employees. In MIL #4, Defendant argues for exclusion of similar
testimony from Customer Service Manager Mercy Miranda about the misogynous
behavior of Mr. Hancock towards her and other women, the sexual harassment she
suffered at the hands of Mr. Hancock’s right-hand man, and her alleged
retaliatory firing after she complained about sexual harassment. Defendant repeatedly tags the testimony of
these women as inadmissible “propensity” evidence under Evidence Code § 1101,
arguing that it constitutes evidence of Defendant’s poor character or prior bad
acts to show that it acted in the same manner in its treatment of
Plaintiff. But Defendant fails to
acknowledge that Evidence Code § 1101 explicitly permits the admission of character
evidence, in the form of an opinion, evidence of reputation, or evidence of
specific instances of misconduct, where the case presents an issue of motive,
intent or plan. The evidence at issue
here is centrally relevant to Defendant’s discriminatory and retaliatory
intent, its cultivation and maintenance of a pervasive sexist culture that
tolerates sexual harassment and discrimination, its failure to prevent
discrimination, retaliation and harassment, and the owner’s ratification of the
alleged misconduct Plaintiff seeks to prove at trial. Defendant attempts to distinguish the Rosales
and Miranda testimony from Plaintiff’s circumstances by saying it concerns
different harassers and different victims in an office setting rather than in the
warehouse. But what is ignored by
Defendant is the significance of the testimony and its impact on all employees,
since the opinions and statements about misconduct are being provided by the
woman who was Defendant’s Human Resources Manager at the time of Plaintiff’s
employment and termination and another female manager employed during the same
period, and their accusations are targeted, not at some remote, unrelated
manager, but at the owner of the company and his close associates. There is no question that this evidence is
highly probative of key elements of Plaintiff’s case and that its relevance
outweighs any concerns about its admission prompting the need to call other
witnesses. As to its prejudicial value,
the Court agrees that the testimony is prejudicial to Defendant’s interests,
but that impact arises from its force and significance, not from any undue taint
that might emerge.
TENTATIVE RULING:
DENIED.
This evidence concerns the behavior of one
of the direct harassers of Plaintiff just a few months after her
termination. It is classic “me too”
evidence in that it rebuts the suggestion that Reyes’ comments and actions
directed towards Plaintiff were not sexually motivated or demeaning to her as a
woman, thus reflecting his intent. The
evidence is also probative of whether Defendant took steps to prevent
harassment from occurring in that the evidence appears to show that little was
done to avert Reyes’ harassment after Plaintiff’s complaints, which put Reyes
in a position to harass another female worker thereafter.
Defendants’ MIL #5: seeking to exclude evidence and argument about
Plaintiff’s allegations that she was promised a job if she received Covid-19
vaccinations.
TENTATIVE
RULING: GRANTED, without opposition.
Defendants’ MIL #5: seeking to exclude any testimony by Mercy
Miranda.
TENTATIVE
RULING: DENIED.
The proper method for dealing with an objecting deponent is to bring a
motion to compel answers, not to repeat the questions in an intimidating manner
or seek exclusion of the witness’ testimony at trial. The transcript reflects that Ms. Miranda felt
attacked and unwell and, thus, terminated the deposition with a promise to
schedule another day. It appears that
defense counsel has Ms. Miranda’s address from the proof of service on the
subpoena and her email, so it is unclear why a second subpoena or a motion to
compel was not served on Ms. Miranda.
Based on this record, therefore, the Court will not bar her from
testifying at trial.
Defendants’ MIL #7 seeking to prohibit testimony from witnesses
not identified in advance of trial.
TENTATIVE
RULING: GRANTED, without opposition.
The Court agrees
with Plaintiff that evidence of her prior lawsuit should be excluded as
improper character evidence under Evidence Code § 1101 and as unduly
prejudicial, confusing and time-consuming under Evidence Code § 352. In Lowenthal v. Mortimer (1954) 125
Cal. App. 2d 636, 643, our Court of Appeal reversed a jury verdict in favor of
defendant, based on an improper ruling allowing evidence on 15 prior lawsuits
in which the plaintiff and her husband were involved. The appellate court ruled that these lawsuits
were irrelevant to the issue of plaintiff’s alleged negligence in the case that
was tried, not probative of any “nervousness” on plaintiff’s part in
confronting the situation that led to the recent accident, and improper and
prejudicial as a means of attacking the credibility of the plaintiff. (Id., at pp. 340-342.) The same must be said here. Evidence of Plaintiff’s prior lawsuit has no
probative value in assessing the strength or credibility of her claims here and
does nothing to undercut or bolster her credibility in making those claims.
Defendants argue
that the prior lawsuit should be admitted as evidence of a “pattern of ‘crying
wolf’ and of manufacturing claims,” that it is admissible under subdivision (b)
of Evidence Code §1101 to show Plaintiff’s motive, intent, or plan to use litigation
to secure financial gain rather than to assert valid complaints about
discrimination and retaliation. Defendants
also contend that Plaintiff’s prior lawsuit demonstrates her knowledge of what
she needs to prove in this case and her scheme to create false evidence to
bolster her claims. The Court is not
persuaded by these arguments. That
Plaintiff lost a previous lawsuit for discrimination against a prior employer
says nothing about the righteousness of her claims here. Nor can it be said that it reflects a “plan”
or “scheme” on Plaintiff’s part since evaluating such a pattern necessarily
involves an objective assessment of the underlying misconduct being alleged in
each case as much as Plaintiff’s subjective evaluation of her employment
circumstances. Further, Plaintiff’s
efforts to assert her rights under protective legislation like the FEHA should
not be undermined by allowing Defendants to disparage her “intent” or “motive” to
enforce those rights against multiple employers as somehow nefarious or
improper.
As an alternative
basis for admission, Defendants urge the Court to permit evidence of
Plaintiff’s prior lawsuit to prove that her emotional distress arising from
Defendants’ alleged misconduct in 2018
through November 2020, was in fact generated as a result of her
difficulties with her previous employer in the years leading up to her 2012 and
2013 administrative complaints against the County of Los Angeles. This is
simply not plausible. Plaintiff’s
alleged misconduct by the County is sufficiently remote in time from the
misconduct asserted against Defendants that it cannot be said that any pre-2012
misconduct would have been an alternate, pre-existing impetus for Plaintiff’s
current emotional injuries. Certainly, Defendants
have pointed to no evidence supporting their contention that Plaintiff’s
experience with the County contributed in any way to the emotional distress
damages she claims to have suffered in this case.
Finally, even if
there were some minimal probative value to be ascribed to Plaintiff’s prior
lawsuit, the Court would exclude the evidence under Evidence Code § 352 because
its scant relevant is starkly outweighed by the prejudice Plaintiff would
suffer by being pegged as a litigious employee, the confusion the jury would
experience in wondering how to assess Plaintiff’s prior work experience in
ruling on this case, and the waste of time and resources that would be
necessary to explore Plaintiff’s complaints in the prior case to compare and
contrast them with those in this case.
Plaintiff’s MIL # 2: seeking to exclude any evidence, testimony,
or argument regarding claims or parties no longer at issue.
TENTATIVE RULING:
GRANTED IN PART, as to any claims against any other
parties, but DENIED IN PART, as to evidence mentioning Select Medical in
documents and other evidence, subject to Plaintiff’s right to object to
specific evidence offered at trial.
Defendants’ MIL #4: seeking to exclude evidence related to other
lawsuits or settlements involving defendants.
TENTATIVE RULING:
GRANTED IN PART AND DENIED IN PART.
While the litigation process of the lawsuit brought against Defendants
by Wendy-Ann Sylvester, M.D., is likely to be wholly irrelevant to any issue in
this action, some of the underlying conduct complained of by Dr. Sylvester may
be admissible, as explained above, to demonstrate Defendants’ discriminatory
intent. Further, to the extent that Dr.
Sylvester can testify she made complaints about Dr. Saecho or about other
objections she lodged to her mistreatment, these actions may be admissible to
prove that Defendants had notice of Dr. Saecho’s misconduct and failed to
remedy it. Such evidence is plainly
admissible to support Plaintiff’s failure to prevent claim.
