Judge Thomas D. Long, Case Number: 21STCV01261, Date: 2024-01-30 Tentative Ruling

On November 21, 2023, following a jury trial, the Court entered judgment in favor of Defendants AutoZoners LLC, AutoZone Inc., and AutoZone West LLC and against Plaintiff Richard Pastore.

On December 6, 2023, Plaintiff filed a Notice of Intent to Move for New Trial, and on December 15, 2023, he filed this memorandum of points and authorities. Plaintiff also filed a motion to tax costs.

In ruling on a motion for a new trial after a court trial, the Court may change or add to the statement of decision, modify the judgment, vacate the judgment, grant a new trial on all or part of the issues, or vacate and set aside the statement of decision and judgment and reopen the case for further proceedings. (Code Civ. Proc., § 662.) Any judgment entered thereafter is subject to section 657. (Ibid.)

A verdict may be vacated and a new trial ordered due to irregularity in the proceedings that prevented a party from having a fair trial, accident or surprise, newly discovered evidence that could not reasonably been discovered and produced at trial, excessive or inadequate damages, insufficiency of the evidence to justify the verdict, or an error in law, among other grounds. (Code Civ. Proc., § 657.)

A. Plaintiff Has Not Shown that Exclusion of a Declaration Was an Irregularity in the Proceedings.

Plaintiff argues that the exclusion of Tuesdee Costa’s declaration, intended for impeachment, was an irregularity in the proceedings. (Motion at pp. 3-4, 7; Gbewonyo Decl. ¶ 3.) During the trial, Defendants’ counsel contended that Plaintiff’s counsel did not produce the declaration during written discovery. (Gbewonyo Decl. ¶ 5.)

Defendants’ Request for Production of Documents No. 29, propounded on October 21, 2021, sought all written statements Plaintiff obtained from Defendants’ employees (current or former) concerning any matters referenced in the operative Complaint. (Opposition at p. 2; Chun Decl. ¶ 3 & Ex. A.) In his verified responses, served on January 20, 2022, Plaintiff represented that he had no such documents in his possession. (Opposition at pp. 2-3; Chun Decl. ¶ 4 & Ex. B.) This was false: Costa’s declaration is dated July 31, 2019, prior to Defendants’ Request for Production of Documents. (Motion, Ex. 1.)

Plaintiff’s motion does not identify what part of Costa’s testimony would be impeached or explain how its exclusion was an irregularity in proceedings. (Motion at pp. 3-4, 12.) The Court “need not consider an argument for which no authority is furnished.” (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.)

In his reply, Plaintiff contends that the inconsistency is about whether Costa’s scheduled work hours were consistent or reduced. (Reply at pp. 3-4.) However, Plaintiff still does not explain how this was an irregularity or how it affected the outcome of the trial. Instead, Plaintiff offers only the conclusory argument that “[h]ad the Court allowed Pastore and his counsel to impeach Costa’s testimony with Costa’s signed declaration, then the outcome of the trial may have been different.” (Motion at p. 12.)

B. Plaintiff Has Not Shown that Exclusion of Interview Statements Was an Irregularity in the Proceedings.

Plaintiff argues that he was precluded from introducing “various written statements obtained by Defendants during Defendants’ investigation of Pastore’s complaints” for impeachment purposes and to establish pretext. (Motion at p. 7; see id. at p. 13.) Specifically, Plaintiff cites Hugo Munoz’s interview statement. (Gbewonyo Decl. ¶ 6 & Ex. 3.) In reply, Plaintiff argues that “statements made pursuant to an investigation for Lorena Casson clearly fall within the exception to hearsay . . . .” (Reply at p. 6.)

As Defendants note, the Court excluded Exhibits 83, 86, and 91 because they contained multiple levels of hearsay, no foundation was laid for a proper hearsay exception, and they were cumulative. (Opposition at pp. 5-6.) Even if “this evidence had several non-hearsay purposes” (Reply at p. 6), Plaintiff did not establish that at trial.

Again, Plaintiff does not explain how the exclusion of these exhibits was an irregularity or how it affected the outcome of the trial. Plaintiff offers only the conclusory argument that “[t]he preclusion of the exhibits affected Pastore’s substantial rights, as the outcome of the trial would have been significantly altered and prevented Pastore from having a fair trial, entitling Pastore to a new trial.” (Motion at p. 13.)

C. The Court Has Already Ruled on Counsel’s Alleged Conflict and Adopts Its Prior Ruling.

Plaintiff argues that he is entitled to a new trial due to newly discovered evidence about Defendants’ counsel. (Motion at pp. 8-11.) Zalman Robles, former attorney at Plaintiff’s counsel’s firm, currently works for Defendants’ counsel’s firm. (Motion at pp. 4, 8; Gbewonyo Decl. ¶ 7.) Plaintiff contends that when working on Plaintiff’s case at the first firm, “Robles became privy to confidential information that could affect the outcome of the proceedings before the court.” (Id. at p. 10.)

On November 13, 2023, Plaintiff filed a motion to disqualify Defendants’ counsel’s firm on this same basis. On December 12, 2023, the Court denied the motion, finding that Defendants rebutted the presumption that any confidential attorney-client information was used or disclosed in Robles’s new employment with Defendants’ firm, Plaintiff had not shown that Robles actually conveyed confidential information, and the newly implemented ethical wall will continue to protect any of the Plaintiff’s confidential information during post-trial motions and appeals.

Further consideration of this argument in this motion is tantamount to a motion for reconsideration. Additionally, Plaintiff provides no new argument or evidence here that would change the result. The Court therefore incorporates and adopts its reasoning from the December 12, 2023 order denying Plaintiff’s motion to disqualify.

A prevailing defendant in a FEHA action may be awarded fees and costs only when the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. (Gov. Code, § 12965, subd. (c)(6).) This prohibition on recovery also applies to fees and costs that would otherwise be recoverable under Code of Civil Procedure section 998. (Gov. Code, § 12965, subd. (c)(6).) “By making a cost award discretionary rather than mandatory, Government Code section 12965(b) [now section 12965, subdivision (c)(6)] expressly excepts FEHA actions from Code of Civil Procedure section 1032(b)’s mandate for a cost award to the prevailing party.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105.) In determining whether an action is frivolous, unreasonable, or groundless, the court must not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. . . . Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.” (Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412, 421-422.)

Defendants do not argue that Plaintiff’s claims were frivolous and unreasonable. (See Opposition.) Instead, Defendants argue that they may recover their costs because six of the ten causes of action were non-FEHA claims: negligent hiring, retention, and supervision; violation of Labor Code section 1102.5; wrongful termination in violation of public policy; intentional infliction of emotional distress; assault; and battery. (Opposition at pp. 7-8.)

Defendants’ Memorandum of Costs and opposition to the motion to tax costs do not attempt to distinguish the costs incurred for only the non-FEHA causes of action. For example, Defendants seek filing fees for their motion to compel arbitration, joint stipulations to continue dates, opposition to motions in limine, and many more documents that are equally applicable to all causes of action. Plaintiff’s non-FEHA claims are so intertwined with the FEHA causes of action that it is not possible to distinguish costs that were incurred on only those causes of action. When a defendant’s costs were not increased by the inclusion of additional theories of liability, the express public policy of the FEHA exception controls, and only costs that were properly allocated to non-FEHA claims are recoverable. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062.)

The motion to tax costs is GRANTED. Defendants shall not recover their costs in this action.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court