Judge: Theresa M. Traber, Case: BC720314, Date: 2025-01-02 Tentative Ruling
Case Number: BC720314 Hearing Date: January 2, 2025 Dept: 47
Annabel
Aghajanian v. City of Glendale, Case No. BC720314
TENTATIVE
RULINGS ON CERTAIN MOTIONS IN LIMINE
Plaintiff’s MIL # 1: seeking to exclude any evidence, testimony,
or argument regarding Plaintiff’s prior lawsuit against her former employer.
TENTATIVE RULING: GRANTED.
The Court agrees
with Plaintiff that evidence of her prior lawsuit should be excluded as
irrelevant under Evidence Code §§ 350 and 210 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 making
false complaints against her supervisors when her work performance is
criticized,” and that it is admissible under subdivision (b) of Evidence Code
§1101 to show Plaintiff’s plan or design to use litigation to secure financial
gain rather than to assert valid complaints about discrimination and
retaliation. 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 complained about in August 2018 was in fact
generated by her difficulties with her previous employer in her employment with
the City of Los Angeles from January 2007 to April 2008. (Defendant’s Exh. B,
p. 31.) This is simply not plausible.
Plaintiff’s allegations of misconduct by the City during 2007-2008 is
sufficiently remote in time from the misconduct asserted against Defendants
that it cannot be said that any such 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 City a
decade beforehand contributed in any way to the emotional distress damages she
claims to have suffered in this case.
Defendant
also urges the Court to allow evidence of the past lawsuit to be used to
impeach Plaintiff’s testimony in this case that she never treated with a mental
health care professional (Exh. D, p. 80) by pointing to interrogatory answers
in the prior lawsuit. It is not clear to the Court that there is any
contradiction between Plaintiff’s recent deposition testimony and her July 2009
interrogatory answers. (Exh. B, p.
46.) In those answers, Plaintiff stated
that she treated with Dr. Karo Isagholian for an “[e]xamination and treatment
for workplace/industrial injuries (mental/emotional and physical/orthopedic)”
on September 6, 2007, and January 10, 2008.
(Id.) Although Defendant
may be able to prove otherwise, it does not appear that Dr. Isagholian was a
“mental health care professional,” but rather a worker’s compensation doctor or
general physician treating Plaintiff for her orthopedic injury and stress. Subject to additional proof that there is a
real conflict in Plaintiff’s sworn statements, the Court denies Defendant’s
effort to use Plaintiff’s 2009 interrogatory answer to impeach her recent
deposition testimony.
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 relevance 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.
The Court concludes, therefore, that evidence of Plaintiff’s prior
lawsuit must be excluded.
TENTATIVE RULING: GRANTED.
The Court disagrees with Defendants that there is any legitimate
non-hearsay purpose for admission of the anonymous letters. The idea that the letters prompted an
investigation is all well and good, but the fact that Defendants could not
identify the author of the letters, confirm the facts and incidents on which
the author based his or her accusations against Plaintiff, or analyze the
possible biases or motivations of the author renders the content of the letters
to be purely inadmissible hearsay. Defendants’
witnesses may be able to say they conducted an investigation in response to
anonymous letters, if the reason or impetus for their investigation is
relevant, but they cannot seek admission of the substance of the letters without
running afoul of the hearsay rule.
Moreover, given the flimsy basis for a non-hearsay purpose – that
Defendants reasonably relied on unsubstantiated charges raised by anonymous
sources to reach legitimate reasons for their actions – any substantive
reference to the letters would provoke a prejudicial response in the jury that
would be starkly outweighed by any probative value.
Plaintiff’s MIL # 3: seeking to exclude any evidence of, reference
to or argument regarding Plaintiff’s alleged failure to mitigate damages.
TENTATIVE RULING: GRANTED IN PART and DENIED IN PART.
Defendant did not timely assert a failure to mitigate
affirmative defense in this case. Having
waived that defense, Defendant may not offer evidence or argument in its
support. That said, as Defendant
contends, an employer may offer evidence of wages and benefits actually earned
after an allegedly wrongful termination to demonstrate the true lost
compensation suffered by the plaintiff employee. (Erler v. Five Points Motors (1967)
249 Cal. App. 2d 560, 567–68 [an employee’s “actual damage is the amount of
money he was out of pocket by reason of the wrongful discharge” which is the
contract wages minus income earned after discharge].) As a result, the motion must be denied as to
evidence and argument about what Plaintiff actually earned after her
termination because these are relevant
to the lost compensation to which she may be entitled.
On the other hand, any evidence and argument about whether
Plaintiff retained her post-termination job and/or why she left it is relevant
only to the affirmative defense of failure to mitigation. It is plain from Defendant’s opposition that
it intends to submit evidence that Plaintiff “quit [her] job [at Budlong &
Associates] because of Covid without ever asking for any accommodation.” (Opposition, p. 2.) This evidence is unrelated to what Plaintiff
actually earned and instead wades into the irrelevant area of what she could or
should have earned with reasonable diligence.
Although Defendant relies on Stanchfield v. Hamer Toyota, Inc.
(1995) 37 Cal. App. 4th 1495, 1501, to argue that whether Plaintiff improperly
quit her position is part of the offset equation, a quick review of that case
undermines the argument. Instead, Stanchfield
holds that the failure to mitigate affirmative defense may be established by
showing either the lack of reasonable diligence in finding a comparable
replacement job or by an unreasonable relinquishment of such a job or
both. In either case, however, the defense advanced is the affirmative one
that Defendant has waived. Quoting from Parker
v. Twentieth Century–Fox Film Corp (1970) 3 Cal. 3d 176, at pages 181–182,
the Stanchfield court explained:
“The general rule is that the measure of recovery by a wrongfully
discharged employee is the amount of salary agreed upon for the period of
service, less the amount which the employer affirmatively proves the employee
has earned or with reasonable effort might have earned from other employment.
[Citations.] However, before projected earnings from other employment
opportunities not sought or accepted by the discharged employee can be applied
in mitigation, the employer must show that the other employment was comparable,
or substantially similar, to that of which the employee has been deprived; the
employee's rejection of or failure to seek other available employment of a
different or inferior kind may not be resorted to in order to mitigate damages.
[Citations.]” (Stanchfield, supra, at
p. 1501.) Because Defendant has not
asserted a failure to mitigate defense, it cannot offer evidence about how or
why Plaintiff left her Budlong & Associates job. This is not part of the offset amount
Defendant can seek to prove and, thus, is irrelevant under Evidence Code §
350.
Moreover, such evidence must be excluded under Evidence Code
§ 352 as unduly prejudicial and confusing to the jury because any suggestion
that Plaintiff left her post-termination employment would likely taint the
jury’s evaluation of Plaintiff’s damages even though such evidence, as
described by Defendant, would be unsupported by the mandatory showing that the
original job secured was “comparable or substantially similar” to the position
lost. Even if Plaintiff’s decision to
quit her Budlong & Associates job may be questioned as not entirely
justifiable, the jury is not entitled to use that decision against her if the
job itself was different or inferior to the position she held with
Defendant. And having waived its affirmative
defense of failure to mitigate, Defendant is not entitled to submit evidence or
argue that the two positions are comparable or substantially similar.
In sum, Plaintiff’s motion is denied as to proof of the
actual post-termination wages and benefits she earned because they are relevant
to offset her claimed lost compensation but is otherwise granted as to any
evidence or argument about the actions Plaintiff took to secure or leave any
post-termination jobs. The Court notes
that a stipulation regarding the amounts of post-termination wages and benefits
received each year would likely be negotiable and would reduce trial time.
Defendant’s MIL # 1: seeking to exclude any evidence of, reference
to or argument regarding Defendant Burhan Alshanti’s Facebook posts.
TENTATIVE RULING:
GRANTED IN PART and DENIED IN PART.
Plaintiff’s theory of
Alshanti’s harassment is that he elevated his own religious beliefs over hers,
denigrated her religion and national origin, and intimidated her with
aggressive or violent images about how members of his religion and ethnic
background would dominate other lesser cultures and faiths, including the Jews
of Israel. (See Opposition, pp.
1-2.) Plaintiff seeks to offer into
evidence seven images Alshanti posted on his public Facebook page. Defendant urges exclusion of all the posts arguing
they are inadmissible character evidence barred under Evidence Code § 1101, constitute
hearsay, and are inadmissible under Evidence Code § 352 as unduly prejudicial
and likely to consume excessive time to place them in context.
In general, the Court rules that the Facebook posts are not
hearsay because they would not be offered to prove the truth of the matters
stated therein but rather Alshanti’s state of mind in posting them. The Court also concludes the posts would not
run afoul of Evidence Code § 1101(a)’s prohibition on admitting evidence of bad
acts seeking to show similar misconduct in dealing with Plaintiff, because they
are being offered to show Alshanti’s discriminatory intent, making them
admissible under § 1101(b), if they reflect an intent that is relevant to the
action and not inadmissible under Evidence Code § 352.
Having considered the posts in the context of Plaintiff’s claims,
the Court grants the motion to exclude with respect to the images numbered 1,
2, 4, 5, 6 and 7, finding that the probative value of these Facebook posts, if
any, is markedly outweighed by the serious potential for prejudice and the need
to waste undue time to explain the context of this posts. Images 1, 2 and 4 do not elevate Alshanti’s
religion and culture over others, instead only criticizing and demeaning Israeli
Jews and/or the government of Israel. Nor
do they attack Plaintiff’s religion or background as she is neither a Jew nor
an Israeli. Images 5 and 6 appear to
reflect political aspirations or views, with the former calling for Palestinian
liberation and the latter reflecting a hopeful celebration of a military
ceasefire. The same must be said of
Image 7, which conveys the Palestinian goal to be a liberated separate state.
None of these of these hold any probative value in this case and, even if there
were some minimal relevance, it would be overshadowed by the potential for
prejudice. This is particularly true with respect to Image 5 because of its
mention of Hamas – plainly a controversial player in the Middle East.
The Court denies the motion as to Image 3, which shows an
armed Palestinian soldier embracing a famous mosque. This could be read as an endorsement of the
use of force to advance the Muslim religion that is consistent with the aggressive
and harassing comments to which Plaintiff was subjected and reflects a
discriminatory intent as alleged by Plaintiff.
Accordingly, the Court grants the motions as to Images 1, 2,
4, 5, 6 and 7 and denies it as to Image 3.
Defendant’s MIL # 2: seeking to exclude any evidence of, reference
to or argument regarding any economic or non-economic damages not previously
disclosed in discovery.
TENTATIVE RULING:
DENIED.
The Court is unable to issue a meaningful ruling because
Defendant has not identified any evidence to be excluded. Further, it has failed to demonstrate any
basis for exclusion. 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.) Defendant has made no such
showing here.
Defendant’s MIL # 3: seeking to exclude any evidence of, reference
to or argument regarding any punitive damages.
TENTATIVE RULING: GRANTED
IN PART, as to Defendant City of Glendale, and otherwise DENIED.
Defendant’s MIL # 4: seeking to exclude any evidence of, reference
to or argument regarding Vahik Haddadian’s claims against the City, lawsuit and
settlement.
TENTATIVE RULING: DENIED, except as to the existence and terms
of the settlement.
Haddadian’s testimony in this case is centrally relevant to
Plaintiff’s claims, as he will provide percipient evidence about Plaintiff’s
work performance and his evaluation of that performance, Defendants’
interference with Haddadian’s assigned task of conducting a performance
evaluation of Plaintiff, and their allegedly retaliatory response to his
refusal to change that evaluation to serve Defendants’ purposes rather than
reflecting Haddadian’s true perspective.
Not only is this evidence key to proving the discrimination and
retaliation Plaintiff faced, but Haddadian’s personal experience with
Defendants’ allegedly retaliatory conduct is classic “me too” evidence
revealing Defendants’ retaliatory animus and their modus operandi for dealing
with protesting employees. While the
evidence may be extremely damaging to Defendants depending on how it is
received by the jury, the Court cannot say that it will engender “undue
prejudice” within the meaning of Evidence Code § 352. Thus, the Court denies the motion with
respect to Haddadian’s supervision of Plaintiff and evaluation of her job
performance, as well as the pressure and backlash he experienced from
Defendants who sought to change Plaintiff’s evaluation over Haddadian’s
objection and then fired him when he refused to comply. Haddadian’s reaction that he was retaliated
against for his opposition and his decision to sue are also admissible as “me
too” evidence.
The fact that Haddadian reached a settlement with Defendants
and the terms of that agreement are not admissible, however. Evidence Code § 1152 prohibits the admission
of Defendants’ settlement with Haddadian to prove their liability to him in the
context of his claims of retaliation.
While Plaintiff suggests Haddadian’s settlement is somehow relevant in
some other way, she has failed to identify any other probative value of the
settlement or its terms. In the Court’s
view, while the settlement is directly connected to Defendants’ alleged mistreatment
of Haddadian rather than Plaintiff, that
evidence is only relevant here as part of a “me too” showing to support
liability to Plaintiff. Thus,
Haddadian’s settlement would in fact be offered to show Defendants’ liability
to Plaintiff so it must be excluded under Evidence Code § 1152.