Judge: Yolanda Orozco, Case: 19STCV33158, Date: 2023-04-26 Tentative Ruling
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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.
Case Number: 19STCV33158 Hearing Date: April 26, 2023 Dept: 31
PROCEEDINGS:¿ MOTION
FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION
¿
MOVING
PARTY:¿ Individual Defendants Defendants Rafael “Rene” Munoz, Gregory
Rodriguez, David Silverio, and Michael Hernandez.
RESP.¿ PARTY: ¿Plaintiffs Plaintiffs Art Hernandez, Alfred Gonzalez,
Benjamin Zaredini, David Casas, Louis Granados, Mario Contreras, Oscar Escobedo
and Ariela Lemus
MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION
TENTATIVE
RULING
Individual Defendants’
Motion for Summary Judgment, or Summary Adjudication in the alternative, is
DENIED.
BACKGROUND
In this
action, several sheriff’s deputies—Plaintiffs Art
Hernandez, Alfred Gonzalez, Benjamin Zaredini, David Casas, Louis Granados, Mario
Contreras, Oscar Escobedo, and Ariela Lemus— who were formerly assigned to
the East Los Angeles station allege that they were pressured to quit their jobs
or leave the station and that they were otherwise harassed by other deputies
who are alleged members of a gang known as the Banditos.¿
The operative Sixth Amended
Complaint alleges discrimination, harassment, retaliation, and related claims
against Defendant County of Los Angeles (“County”) and alleges harassment,
intentional infliction of emotional distress, assault, and battery against
Individual Defendants Rafael “Rene” Munoz (“Munoz”), Gregory Rodriguez
(“Rodriguez”), David Silverio (“Silverio”), and Michael Hernandez (“Hernandez”)
(collectively “Individual Defendants”).¿
On December
15, 2022, Individual Defendants Rafael “Rene” Munoz, Gregory Rodriguez, David Silverio,
and Michael Hernandez moved for summary adjudication as to the four (4) causes
of action alleged against them.
On February 27, 2023, Plaintiff filed
opposing papers.
On March 08, 2023, Individual
Defendants filed a reply.
On March 13, 2023, the Court SUSTAINED
Individual Defendants’ objection Plaintiffs’ separate statement and ordered the
stricken portions to be refiled to comport with the Code of Civil Procedure
section 437c subdivision (b)(1) and California Rules of Court, rule 3.1350
subdivision (e). Defendants were allowed to file a response to the separate
statement.
On April 07, 2023, the Plaintiffs filed
an amended separate statement.
On April 17, 2023, Individual
Defendants again filed objections to Plaintiff’s Separate Statement
LEGAL STANDARD
The purpose
of a motion for summary judgment or summary adjudication “is to provide courts
with a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute.”¿ (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.)
“Code of Civil Procedure section 437c, subdivision (c), requires the trial
judge to grant summary judgment if all the evidence submitted, and ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by other
inferences or evidence, show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿¿¿¿¿
¿
“On a motion
for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable
issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment
if they can show that there is no triable issue of material fact or if they
have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at
843.)¿ Summary adjudication may be granted as to one or more causes of action
within an action, or one or more claims for damages. (Cal. Code of Civ. Proc.
§437c(f).)¿¿¿¿¿¿
¿
A defendant moving for summary judgment bears two burdens: (1) the
burden of production – presenting admissible evidence, through material facts,
sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra,
25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that
the claim “cannot be established” because of the lack of evidence on some
essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts
to the plaintiff to show that a “triable issue of one or more material facts
exists as to that cause of action or defense thereto.”¿(Id.)¿“On ruling
on a motion for summary judgment, the court is to ‘liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.’” (Cheal v. El Camino
Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿
¿
On a summary judgment motion, the court must therefore consider what
inferences favoring the opposing party a factfinder could reasonably draw from
the evidence. While viewing the evidence in this manner, the court must bear in
mind that its primary function is to identify issues rather than to determine
issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿
¿
Defeating summary judgment requires only a single disputed material
fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if
all the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”]
[emphasis added].) Thus, any disputed material fact means the court must deny
the motion – the court has no discretion to grant summary judgment. (Zavala
v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v.
Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿
EVIDENTIARY OBJECTIONS
I.
Individual Defendants resubmit their
objections to Plaintiffs’ response to Defendants’ separate statement.
On March 13, 2023, the
Court found Plaintiffs’ separate statement, which was more than 800 pages long,
was deficient and SUSTAINED the Individual Defendants objections and ordered
the following portions of Plaintiffs’ separate statement stricken:
UMF ¶¶ 3, 5, 8-16, 18-71,
73-78, 81-96, 99-126, 128-130, 133-143, 145, 152, 154-177, 179-200, 202-228,
230-258, 261, 263, 266-274, 277-329, 331-336, 338-342, 344- 359, 361-366,
368-395, 397-399-401-403, 405-415, 417-423, 425-427, 429-456, 458-482, and
484-514.
Plaintiffs were allowed to
file an amended separate statement, which Plaintiffs did on April 17, 2023. Individual
Defendants again objected to Plaintiffs’ separate statement on the basis that
the deficiencies outlined by the Court on March 13, 2023, remain.
The Court agrees that
Plaintiffs’ separate statement continues to be replete with improper argument
and string citations that make it difficult to ascertain if the evidence cited
pertains to the disputed fact, Plaintiffs’ improper argument, or something else.
(See e.g. UMF ¶¶ 3, 4, 8, 9 13, 14, 21, 22, 23, 25, 27-31, 33-39, 41-46, 49-53,
57,68-71, 81-85, 87-91, 99-102, 104, 105, 107, 109, 121, 123, 125, 126, 128,
133, and 135.)
The Court has the
discretion to find that Plaintiffs’ facts not stated in conformity to section
437c, subdivision (b)(3) will be deemed undisputed, which the Appeal Court
found was appropriate in Collins v. Hertz Corp. (2006) 144 Cal.App.4th
64, 74. In addition, Plaintiff submitted additional facts which Plaintiffs
argue remain disputed. (See Plaintiffs’ Additional Disputed Facts at 8-27 and
pages 207-227.) The Court notes that Individual Defendants were given leave of
court to file a response to Plaintiffs’ separate statement. (See Min. Or.
03/13/23 [“Defendants may file a response to the Separate Statement no later
than April 17, 2023.”]). Given that Individual Defendants had an opportunity to
respond, the Court will consider the Plaintiffs’ additional disputed facts to
the extent they are relevant to this Motion. The Court also considers’ Individual
Defendants objections. Moreover, the Court was able to ascertain whether
material facts cited by Plaintiffs were indeed disputed and proceed to address
the Motion on the merits.
“Summary judgment is a
drastic remedy to be used sparingly, and any doubts about the propriety of summary
judgment must be resolved in favor of the opposing party.” (Mateel
Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115
Cal.App.4th 8, 17.) Having considered the evidence filed in opposition to this
motion in the light most favorable to the Plaintiffs, the Court finds UMF ¶¶ 5,
9, 13, 70, 77, 78, 90, 95,
96, 129, 130, 142, 150, 151, 175, 176, 198, 199, 226, 227, 256, 257, 263, 267,
271, 328, 335, 336, 353, 358, 359, 398, 399, 414, 422, 423, 450, 451, 477, 478,
508, 509, 541, 542, 548, 549, 550, 551, 552, and 522 to be disputed.
The Court OVERRULES Individual Defendants’ objections to
Plaintiffs’ separate statement.
II.
Individual Defendants submit evidentiary
objections to the Declaration of Plaintiff’s Expert Humberto Guizar filed in
Opposition to the Motion.
Individual Defendants
object to the Declaration of Guizar because they asset he has a financial
interest in this case because Guizar, in addition to being a “gang expert,” is
also a local trial lawyer who represents plaintiffs in excessive force cases
against the County of Los Angeles and Sheriff’s Deputies. (Blanke Decl. ¶ 1,
Ex. A, B.) This included representing a plaintiff in Lisa Vargas v. County
of Los Angeles, No. 2:19-cv03279-MEMF in which the plaintiff alleges, in
part:
“At all times herein
mentioned, the Banditos gang members oversaw all the 11 operations at the East
LA Station including the activities of Defendants NIKO LIS 12 ROJAS and
JONATHON PEREZ who were members or prospects (aka "puppies").”
(Blanke Decl. Ex C [First
Amended Complaint ¶ 77].)
Individual Defendants’ only
citation to support their assertion that Plaintiff’s expert declaration should
not be considered is a Virginia District Court case in which the district court
found that the witness could not testify as an expert witness because he was
the founder, CEO of the company that was a party to the action. (See Keystone Transportation Solutions, LLC v.
Northwest Hardwoods, Inc. (W.D.
Va., Apr. 19, 2019, No. 5:18-CV-00039) 2019 WL 1756292, at *1 (“Keystone”.)
The witness would also personally recover from the lawsuit (Id. at *2.)
Any financial bias Plaintiff’s expert may have is not a
direct financial interest in the outcome of the litigation like the witness in Keystone,
such that his declaration should be excluded on that basis. Individual
Defendants fail to point to any cases to holding otherwise. Furthermore, any
questions regarding the credibility of Plaintiff’s expert opinion should be
left to the trier of fact fact. (See People v. Coffman &
Marlow (2004) 34 Cal.4th 1, 82.)
Individual Defendants also
object to the Guizar Declaration on the basis that it is not based on a
reasoned explanation of why the underlying facts led to Mr. Guizar’s conclusion
that Individual Defendants are gang members who were shot callers responsible
for the conduct of its other members, associates, and prospects. (Guizar Decl.
¶¶5-16.)
Paragraph 4 of the Guizar
declaration provides a summary of the reports, depositions, and declarations
Guizar reviewed but fails to state what specific evidence he reviewed in
reaching each individual conclusion in his declaration.
For example, Guizar asserts
that Individual Defendants are Banditos gang members who are shot callers who
direct the harassment, retaliation, and other wrongful conduct carried out by
the Banditos gang. (Guizar Decl. ¶ 9.) Guizar fails to state what evidence he
relied on in forming this opinion. Guizar also fails to specify what evidence
he reviewed to support his conclusion that “the Banditos have committed crimes
against civilians such as false imprisonment and filing false police reports.”
(Id. ¶ 10.) Without citation to the record, the Court cannot ascertain
if the conclusions or opinions in Guizar’s declaration are based on evidentiary
facts or are merely conclusions of law and fact. (See Hayman v. Block (1986) 176 Cal.App.3d 629, 639 [“The affidavits must cite evidentiary facts,
not legal conclusions or ‘ultimate’ facts.”].)
“‘However, even when the witness qualifies as an expert, he or she does not possess a carte
blanche to express any opinion within the area of expertise. [Citation.] For
example, an expert's opinion based on assumptions of
fact without evidentiary support [citation], or on speculative or conjectural
factors [citation], has no evidentiary value [citation] and may be excluded
from evidence. [Citations.] Similarly, when an expert's
opinion is purely conclusory because unaccompanied by a reasoned explanation
connecting the factual predicates to the ultimate conclusion, that opinion has
no evidentiary value because an ‘expert
opinion is worth no more than the reasons upon which it rests.’”
(Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 155 citing Jennings
v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,
1117.)
The Court rules as follows:
Objections Nos. 1, 2, 6, 7,
8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, are SUSTAINED.
Objections No. 3, 4, and 5,
are OVERRULED.
“In determining whether the papers show that there is a
triable issue as to any material fact, the court shall consider all of the
evidence set forth in the moving papers, except that as to which objections
have been made and sustained, and all inferences reasonable deducible from such
evidence.” (Hayman v. Block¿(1986) 176 Cal.App.3d 629, 639–640.)
Accordingly, the Court will disregard the Declaration of
Plaintiff’s expert as to the objections that were sustained due to lack of
citation to the evidence.
III.
Individual Defendants submit evidentiary
objections to the Declaration of Plaintiff’s Expert Dr. Catherin Barret filed
in Opposition to the Motion.
Objections Nos. 1, 4, 5, 8,
and 9 are SUSTAINED.
Objections Nos. 2, 3, 6, 7,
and 10-53 are OVERRULED.
The Court finds that Dr.
Barrett has special knowledge, skill, experience, training, or education to
qualify her as an expert. Moreover, the Court finds that her meeting with the
Plaintiffs through telehealth and review of the Sixth Amended Complaint are sufficient
for her to render an opinion on the Plaintiffs’ mental health.
IV.
Individual Defendants submit evidentiary
objections to the Non-Expert Declarations filed in Opposition to this Motion.
Individual Defendants
object to the non-expert declarations filed in opposition to this Motion on the
basis that the individuals testify to matters outside of their personal knowledge,
contradict their sword admissions made prior to deposition and responses to
written discovery, and are based on inadmissible hearsay. The Court considers
each objection in turn.
1. Objections
to the Declaration of David Casas
Objection Nos. 1, 3, 7, 8,
9, 14, 19, 24, 26, 27, 28, 29, 30, 31, 32, 34, 35, 39, 40, 43, 44, 45, 46, 48, 49,
50, 52, 54, 55, 56, 58, and 60 are SUSTAINED.
Objection Nos. 2, 4, 5, 6, 10,
11, 12, 13, 15, 16, 17, 18, 20, 21, 22, 23, 25, 31, 33, 36, 37, 38, 41, 42, 47,
51, 53, 57, and 59 are OVERRULED.
The Court notes that some
of the objections made by Individual Defendants reference evidence presented in
the Declaration of Jason H. Tokoro, which was not filed by Individual
Defendants in this Motion. Moreover, the Tokoro declaration was also not
referenced in Individual Defendants’ separate statement. (See San Diego Watercrafts, Inc. v. Wells Fargo
Bank, N.A.
(2002) 102 Cal.App.4th 308, 316 [“‘The due process aspect of the separate
statement requirement is self evident—to inform the opposing party of the
evidence to be disputed to defeat the motion.’”].) Nevertheless, Exhibit 23 of
the Tokoro Declaration is Exhibit 20 of the David P. Blanke Declaration in
Individual Defendants’ Compendium of Evidence (DCOE), which is the deposition
transcript of Plaintiff David Casas. Similarly, Individual Defendants’ Exhibit
21 is Exhibit 25 of the Tokoro Declaration, which is Plaintiff Casas’ responses
to Special Interrogatories.
Accordingly, the Court looked to Exhibits 20 and 21 of the
Individual Defendants’ motion in ruling on the objections based on the Tokoro
Declaration.
2. Objections
to the Declaration of Vanessa Choy
Objection No. 1 is
SUSTAINED.
3. Objections
to the Declaration of Mario Contreras
Objection No. 1 is
SUSTAINED IN PART as to page 2 line 2 which states “because I was being a
peacemaker.”
Objections Nos. 2 to 36 are
SUSTAINED.
4. Objections
to the Declaration of Oscar Escobedo
Objections Nos. 1 to 37 are
SUSTAINED.
5. Objections
to the Declaration of Alfred Gonzalez
Objections Nos. 1 to 45 and
47 to 52 are SUSTAINED.
Objection No. 46 is OVERRULED
as to page 21, paragraph 41, lines 23 to 26 and SUSTAINED as to page 21, lines
26 to 27 beginning with “especially when someone . . ..”
6. Objections to the Declaration of Rosa
Gonzalez
Objections
Nos. 1 and 3-18 are SUSTAINED.
Objection No. 2 is
OVERRULED.
7. Objections
to the Declaration of Louis Granados
Objections
Nos. 1 to 12 and 14 to 88 are SUSTAINED.
Objection
No. 13 is OVERRULED.
8. Objections
to the Declaration of Art Hernandez
Objections
Nos. 1 to 10 and 11 to 41 are SUSTAINED.
Objection
No. 11 is OVERRULED.
9.
Objections to the
Declaration of Sean Kennedy
Objections
Nos. 3, 4, 7, 8, 17, 19, 20, 22, 23, 24 to 29, 32, 37, 38, and 39 are SUSTAINED.
Objections
Nos. 1, 2, 5, 6, 11 – 16, 18, 30, 31, and 33 are OVERRULED.
Objections
Nos. 10, 21, 34, 35, and 36 are not material to the disposition of this Motion and
the Court declines to rule on the objections. (Code Civ. Proc., § 437c subd.
(q).)
10. Objections
to the Declaration of Ariela Lemus
Objections Nos. 1 to 64 are
SUSTAINED.
11. Objections
to the Declaration of Robert Olmsted
Objections
No. 3 and 4 are SUSTAINED.
Objections
Nos. 1 and 2 are OVERRULED.
The
Court declines to rule on objection No. 6 as it is not material. (Code Civ.
Proc., § 437c subd. (q).)
12.
Objections to the
Declaration of Britta Steinbrenner
Objections
Nos. 1 to 3 are OVERRULED.
13. Objections
to the Declaration of Benjamin Zaredini
Objections Nos. 1 to 13,
15, 21-28, 30 to 42.
Objections Nos. 14, 20, and
29 are OVERRULED.
14. Objections to the Declaration of Mathew
Burson
Objections Nos. 4 -6, 12,
18, 19, and 24 are SUSTAINED.
Objections 1-3, 7, 8-11,
13-17, 20, 21, 22, and 25 are OVERRULED.
The Court declines to rule
on objection No. 23 as it is not material. (Code Civ. Proc., § 437c subd. (q).)
DISCUSSION
Defendants Rafael “Rene”
Munoz, Gregory Rodriguez, David Silverio, and Michael Hernandez (collectively
“Individual Defendants”) move for summary judgment as to four causes of action
asserted against them: harassment and hostile work environment
(2nd cause of action); intentional infliction of emotional distress (7th cause
of action); assault (8th cause of action); and Battery (9th cause of action.)
Individual
Defendants Rafael Munoz, Gregory Rodriguez, and David Silverio were Los Angeles
County Sherriff’s Department (“LASD”) patrol deputies at the East Los Angeles
station. (UMF 265.) Defendant Michael Hernandez was assigned to the Men’s
Central Jail during the relevant period. (UMF 266.)
The
Plaintiffs David Casas, Mario Contreras, Oscar
Escobedo, Louis Granados, Alfred Gonzalez, Art Hernandez, Ariela Lemus, and
Benjamin Zaredini are also LASD deputies who worked at the East Los
Angeles station. Plaintiffs allege they were harassed by a gang of Latino deputies
called “Banditos” that effectively ran and controlled the East Los Angeles station
from 2017 to 2019.
Around 4:00 a.m. on
September 28, 2018, after a party at Kennedy Hall celebrating the end of
training for new deputies (the “Kennedy Hall incident”),
five of the Plaintiffs assert they were attacked by the Individual
Defendants, who were leaders of the Banditos gang.
The LASD suspended the
Individual Defendants, pending an investigation of the Kennedy Hall incident,
and later terminated three of the Defendants while Defendant Michael Hernandez
retired. The Plaintiffs were later transferred to other stations.
Plaintiffs now bring suit
against the County of Los Angles and Individual Defendants.
2nd
COA: Harassment and Hostile Work Environment
“To
establish a prima facie case of a racially hostile work environment,
[Plaintiffs are] required to show that (1) he was a member of a protected
class; (2) he was subjected to unwelcome racial harassment; (3) the harassment
was based on race; (4) the harassment unreasonably interfered with his work
performance by creating an intimidating, hostile, or offensive work
environment; and (5) the Department is liable for the harassment.”
(Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) The McDonnell
Douglas burden-shifting framework is not applied harassment claims because
“there is no possible justification for harassment in the workplace,’ an
employer cannot offer a legitimate nondiscriminatory reason for it.” (Cornell
v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.)
Furthermore, unlike discrimination claims, harassment
claims are cognizable against individual defendants
under FEHA. (See Reno v. Baird (1998)
18 Cal.4th 640, 650; Janken v. GM Hughes Electronics
(1996) 46 Cal.App.4th 55, 71.) Liability for harassment can extend to nonsupervisory
coworkers:
“An employee of an entity subject to
this subdivision is personally liable for any harassment
prohibited by this section that is perpetrated by the employee, regardless of
whether the employer or covered entity knows or should have known of the
conduct and fails to take immediate and appropriate corrective action.”
(Cal.
Gov. Code, § 12940 subd. (j)(3); see also Lopez v. Routt (2017) 17 Cal.App.5th 1006, 1015 [explaining
that the Legislature amended FEHA to add section 1940(j)(3) in order to impose
individual liability on coworkers for harassment].)
a. Evidence of Racial Animus
Individual Defendants assert that their
relations with Plaintiffs’ and other alleged “Banditos” soured over how the Plaintiffs
performed on patrol and carried themselves at the station and that other
non-Hispanic deputed were also criticized in the same manner. (UMF 17-47.)
Accordingly, Individual Defendants assert that any perceived harassment was not
based on race and there is no evidence of racial animus.
It is undisputed that the Individual
Defendants, like the Plaintiffs, are also Hispanic, and that the Plaintiffs
fail to provide evidence that Individual Defendants used racial slurs or other
inappropriate language regarding Hispanics. (UMF 19.) Nevertheless, there is no
legal support for the proposition that members of the same race cannot
discriminate against or harass other members of the same race by virtue of
belonging to the same racial group. “[I]n the related context of racial
discrimination in the workplace we have rejected any conclusive presumption
that an employer will not discriminate against members
of his own race. ‘Because of the many facets of human
motivation, it would be unwise to presume as a matter of law that human beings
of one definable group will not discriminate against other members of their group.’ [Citation.]” (Oncale v. Sundowner Offshore Services, Inc. (1998) 523
U.S. 75, 78.) The fact that the parties are of the same race, does not mean
there was no harassment based on race.
Individual Defendants point out that
Plaintiff Louis Granados testified that he knew of an African American classmate,
named James Barber, that was bombarded with work by Banditos in order to force
him out of the station because he was Black. (DCOE Ex. 41 [Granados Depo. 139:9-18-140:3-9.].) Plaintiff Art Hernandez
described the groups at the East Los Angeles station as “either Bandidos,
prospects, or associates” and people who were not liked by the Banditos and did
not give into their antics. (DCOE Ex. 48 [Hernandez Depo.360:22-361:4.
360:22-361:4].) Plaintiff Mario Contreras also testified that based on his observations,
Banditos members would try to remove Sherriff’s deputies from the station or
tell them to transfer out if the deputies refused to be influenced by Banditos
members. (DCOE Ex. 25 [Contreras Depo. at 150:23- 151:7].) Plaintiff Mario
Contreras clarified that deputies who did not go against what the Banditos were
saying had no issue with the Banditos. (Id.) However, if “you had a
strong belief and you didn’t like what they were doing, and you were not just
doing it, you were just working your job, and it wasn’t to their standards,
then you had an issue.” (Id.) This was true of Whites, Asians, and
others. (Id; UFM 27.)
Accordingly,
Individual Defendants have met their burden of showing that any alleged
harassing behavior was not based on race but a race-neutral reason for not
being liked by the Banditos. The burden shifts to the Plaintiffs to show that a
triable issue of fact exists as to whether the harassing behavior was due to
racial animus.
Plaintiff
submits as evidence a report by the Office of the Inspector General for the
County of Los Angeles regarding its investigation into the alleged assault by
Banditos (the “OIG Report”). (PCOE Ex. 12.) The report is admissible as a party
admission since the County of Los Angeles is a party in this case. (Evid. Code,
§ 1221; see also Koussaya v. City of Stockton
(2020) 54 Cal.App.5th 909, 927.) The OIG Report stated that there is evidence
of the existence of “deputy cliques and their destructive subcultures” at the
East Los Angeles station. (PCOE Ex. 12 [OIG Report at 1].) “The Kennedy Hall
incident investigation uncovered evidence that a group of veteran Sherriff’s
Department deputies have undue influence over the daily activities and
assignments at the East Los Angeles (East LA) station.” (Id.) The group
was identified as “Banditos.” (Id.) Former Sherriff Alex Villanueva in
his deposition acknowledged that the Banditos “had undue influence over
decisions, line level decisions that were - - should have been done by, for
example, the Training and Scheduling Sergeant. (PCOE Ex. 71 [Villanueva Depo.
16: 12-15].) Villanueva’s statements are admissible as a party admission. (Koussaya, sura, 54
Cal.App.5th at 927 [“We have no difficulty concluding the Chief of Police
was authorized to make statements on behalf of the City concerning the conduct
of police officers under his command.”].)
First, the fact that Individual Defendants
assert that the Banditos targeted both Latinos and non-Latinos alike, does not
provide a defense to the accusation of racial harassment. (See McGinest v. GTE Service Corp. (9th
Cir. 2004) 360 F.3d 1103, 1118 [“DeLeon's use of racially charged words to goad
both black and white employees makes his conduct more outrageous, not less so[.].”)The
relevant question is whether the harassment Plaintiffs allege they experienced
was motivated by their race. Here, the Plaintiffs present evidence that the
harassment they experienced was more severe or pervasive because they were
Latino deputies who actively opposed the Banditos.
Deputy
Justin Waites testified that because he is Black, he believed that he was not
expected to conform to the Banditos group in contrast to the young Latino
Deputies who did have that expectation based on cultural bonds and growing up
in the same areas meaning that Latino Deputes who deviated from the Banditos
were ostracized. (PCOE Ex. 23 [Waites Depo. at 143-145].) Deputy
Alan Soohoo, who is Asian, asserts that while he may not have received special
treatment by the Banditos, because he just focused on his work, he could escape
harassment. (PCOE
Ex. 26 [Soohoo Depo. at 31:2-8].)
“Q: Did you
try to stay clear of the Banditos while you did your job all those years
at the station?
A: No. I
mean, I wouldn’t purposefully cause any problems, but I didn’t have a problem.
I was never harassed.
Q: You were
just focused on doing your work?
A: Yes.”
(Id.
[Soohoo Depo. 31:15-19])
Deputy
James Duran also testified that it was Latino deputies who were harassed. “It
was known that Deputy Munoz would either pressure these guys to be making more
arrests or to be more aggressive. If that didn’t happen, it was common when he
was working shifts at the desk that he would berate them with calls or with
messages on the MDC, disparaging messages against them. That was well known by
Deputies across the shifts.” (PCOE Ex. 24 [Duran Depo. at 93:7-17].) Deputy
Duran asserted that Defendant Rafael Munoz’s behavior was only aimed at Latino
deputies. “All the hostility coming
from that group of people, the hostility in the station was not directed toward
anyone except Hispanic Deputies.” (PCOE Ex. 24 [Duran Depo. at
96:15-17].)
Individual Defendants failed to
show that Latino deputies who focused on their work and stayed clear of the
Banditos were not subject to harassment. In contrast, the Plaintiffs present evidence
that Latino deputies were not “left alone” by the Banditos and were expected to
conform to the Banditos or else they would be harassed for failing to conform.
In other words, the expectation to conform to the Banditos and the harassment
Plaintiffs faced was due, in part, to the fact that they were Latino. Thus,
there is evidence of racial animus.
Accordingly,
the Plaintiffs succeed in showing that a triable issue of fact exists as to
whether the harassment Plaintiffs faced was due to the fact that the Plaintiffs
were Latino deputies who opposed the Banditos group or if they were harassed
for a neutral non-racial reason.
b. Severe and Pervasive Harassment
“[H]arassment
consists of conduct outside the scope of necessary job performance, conduct
presumably engaged in for personal gratification, because of meanness or
bigotry, or for other personal motives. Harassment is not conduct of a type
necessary for management of the employer's business or performance of the
supervisory employee's job.” (Janken v. GM Hughes Electronics (1996) 46
Cal.App.4th 55, 63.)¿Harassment occurs¿when the workplace is
permeated¿with¿“discriminatory intimidation,¿ridicule and insult that
is¿sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 869.) The offensive conduct¿must be
of a repeated, routine, or generalized nature when the harassing conduct is not
severe. (See Lyle v. Warner Bros. Television Productions (2006) 38
Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is
insufficient. (Id.)
“The
working environment must be evaluated in light of the totality of the
circumstances: whether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances These may include the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.”¿(Miller v.
Dep’t of Corrections (2005) 36 Cal.4th 446,¿462.)
First, Individual Defendants argue
that many of the Plaintiffs’ complaints are non-actionable
personnel management matters, such as “(a) the number of deputies assigned to
assist with their calls; (b) working excessive hours; (c) receiving excessive
calls or assignments; (d) receiving calls or assignments at the end of their
shifts; (e) being encouraged to make ‘excessive arrests;’ (f) discipline they
received; (g) promotions for which they were passed over; and (h) the handling
of their requests to transfer out of the ELA Station.” (Mot. at 6:1-5.)
However, the lndividual Defendants fail to present evidence that Defendants
Munoz, Silverio, Hernandez, and Rodriguez did in fact hold a supervisor or
management position that entailed giving their peers instructions or commentary
on how to do their job.
Secondly, Individual Defendants assert that Plaintiffs fail to show that
the harassment they experienced was severe or pervasive. The Court finds that
Plaintiffs presented sufficient evidence to show that triable issues of material
fact exist as to the second cause of action that is common to all Plaintiffs.
i.
UMF 5 and 263 Remain Disputed
Undisputed Material Fact (UMF) 5 and 263 state:
“An ‘incident history report’ is
generated for each call. The incident report gives a minute by-minute account
of, inter alia, which units were assigned to handle the call, and whether they
self-assigned or were assigned by Dispatch. (Lopez Decl. ¶ 5).”
(UMF 5, 263.)
Deputy Bobby Olivarez
testified that incident history reports involving patrol callers would show on
the MDC if someone offered to assist as backup on a call, but not whether the
person actually showed up to assist or if the backup was in fact received.
(PCOE Ex. 25 [Olivarez Depo. at 87:4-21].) Deputy James Duran also testified
that “[s]ometimes an assigned unit does
not mean that unit is going to show up.” (PCOE Ex. 24 [Duran Depo. at 101].) In other words, deputies can refuse
to assign themselves to calls or assign themselves to a call without actually
showing up to provide backup. Accordingly, Plaintiffs have presented sufficient
evidence that Incident History Reports are insufficient to show whether the Plaintiffs
received adequate backup on specific calls.
Moreover, the trier of fact could find that the withholding of backup,
even on one single occasion, sufficient evidence of severe harassment due to
its physically threatening nature and interference with the Plaintiffs’ working
conditions. (See Miller, supra, 36 Cal.4th at 462.) Therefore, it
remains disputed whether Plaintiffs received adequate backup on certain calls,
whether the calls did, in fact, required backup, and whether the withholding of
backup is sufficient to show that the harassment was severe or pervasive.
ii.
UMF 9 and 13
UMF 9 and 267 both state:
“Defendants Michael Hernandez, Rodriguez and
Silverio were never assigned to Dispatch at ELA Station and therefore never
assigned Plaintiffs or any other patrol units (or deputies) to handle calls or
provide backup to the handling unit (or handling deputy or deputies). (M.
Hernandez Decl., ¶ 4; Rodriguez Decl., ¶4; Silverio Decl., ¶ 4).”
(UMF 9, 267.)
UMF 13 and 271 state:
“The
Individual Defendants never directed any ELA Station Dispatcher to (a) withhold
backup assistance from the Plaintiffs or (b) assign excessive, emergency, or
end-of-shift calls to Plaintiffs. (M. Hernandez Decl., ¶ 5; Munoz Decl., ¶ 13;
Rodriguez Decl., ¶ 5; Silverio Decl., ¶ 5).”
(UMF 13, 271.)
Moreover, Deputy Justin Waites confirmed it was the practice of at East
Los Angeles station to always go out on calls when a partner had a dangerous
call, and the deputy was available to go out. (PCOE Ex. 23 [Waites Depo. at
12:8-13].) Deputy Waites testified that although he never had a call where he
went out on a dangerous call and received no backup, he did observe an instance
“[y]ears ago” where a deputy was struggling with a call involving a weapon and
Deputy Munoz sent out a message “Don’t’ help him.” (Id. [Waites Depo. at
12:20-23; 13:5-16]). Deputy Waites adds that he had witnessed calls where
deputies did not receive backup, and recalls one incident in particular where
Plaintiff Zarediini went on a call “but there was no one there to back him up,
so I – my partner and myself responded.” (Id. [Waites Depo. at 16:5-8,
16-19])
Plaintiff David Casas testified that he
witnessed a call involving assault with a deadly weapon and a gunshot victim
that was assigned to Plaintiff Art Hernandez and Defendant Munoz sending out an
MDC message “All, do not help out Art Hernandez on this hot call.” (PCOE Ex. 43
[Casas Depo. 45:10-12]; Ex. 37 [Munoz Depo. 20:25; 21:1-12; 101:23-25; Ex. 47
[Art Hernandez Depo. 140:20-24, 142:10-13, 143:6-8].) The Court does not
dispute the fact that Defendant Munoz had the discretion to not assign himself
to provide backup but questions what official authority Defendant Munoz had to
command other deputies to not provide backup. Individual Defendants failed to
present evidence that Defendant Munoz was not a peer but had a supervisory role
that allowed him to make decisions on how dispatch calls were handled by
deputies.
In addition, even if the Plaintiffs did not
personally experience a situation where backup was withheld, a trier of fact
could find that Defendant Munoz’ action communicated to Plaintiffs a hostile
message that backup would not be provided to deputies he disliked or did not
conform to the Banditos’ expectations. (See Roby v. McKesson Corp.
(2009) 47 Cal.4th 686, 708. [“harassment is generally concerned with the
message conveyed to an employee, and therefore with the social environment of
the workplace . . ..”] [italics original].) Deputy Justin Waites confirmed that
it was the practice at the East Los Angles station to provide backup for
dangerous calls and that he had witnessed a situation where Defendant Munoz
communicate on the MDC to not provide backup to an unnamed deputy. (PCOE Ex. 23
[Waites Depo. at 12:8-13, 16:5-8].)
The Court finds that Defendants Silverio and
Munoz fail to show that they had the authority to dictate who did not receive backup
on certain calls such that their actions could be classified as non-actionable personnel management matters
necessary for the performance of a supervisory job. Therefore, triable issues of fact exist as
to whether Defendants Silverio and Munoz withheld backup from the Plaintiffs.
iii.
Excessive Calls
The Court finds that the Plaintiffs have presented sufficient evidence
to show that triable issues of fact exist whether the Plaintiffs were harassed
by being given excessive calls.
“Yes. What I saw him
doing as far as adding or sending a message not to send a call or to send the
calls to particular deputies.”
(Id. [Garcia Depo. at 117:16-25; 119:3-5].)
Defendant Silverio
failed to provide evidence that as a training officer, he had the authority to
dictate who was assigned to calls such that his actions could be classified as
as non-actionable personnel management matters necessary for the performance of a supervisory job.
iv.
Harassing or Hostile
MDC Messages
The Plaintiffs also succeed in presenting evidence that harassing MDC
messages were sent by Defendant Munoz. Deputy Justin
Waites observed that Plaintiff Oscar Escobedo being harassed by Defendant
Rafael Munoz:
“What I saw
was Deputy Escobedo constantly getting messages from Deputy Munoz regarding his
performance at work. And he was constantly telling Oscar what he needed to do,
how he needed to do it, and it just became too much for Oscar, I think.”
(PCOE Ex. 23 [Waites Depo. at
21:1-9].) Deputy
Justin Waites saw this behavior as an issue because Defendant Rafael Munoz was
not Escobedo’s supervisor. (PCOE Ex. 23 [Waites Depo. at 21:16].) Deputy Waites
asserts that he perceived the MDC messages as petty “and I would characterize
them as harassing in nature” though not racist. (PCOE Ex. 23 [Waites Depo. at
23:6-15].) Deputy Waites also described the behavior as bullying. (PCOE Ex. 23
[Waites Depo. at 23:21].)
Defendant
Rafael Munoz’s behavior regarding the work ethic of Latino Deputies and
disparaging MDC messages was also observed by Deputy James Duran. (PCOE Ex. 24
[Duran Depo. at 93:7-17].) Deputy Alan Soohoo
observed Defendant Munoz having meetings with
deputies to “[b]asically, to lay down the law and explain what to do and what not to do at the
station.” (PCOE Ex. 26 [Soohoo Depo. at 30:2-9].) At his deposition, Deputy Soohoo asserted that the
issue with leadership at the station was “deputies being told what to do and what
not to do all the time and not by a supervisor, but by another peer.” (PCOE Ex.
26 [Soohoo Depo. at 27:23-25].) Former
Sherriff Alex Villanueva commented the same in his deposition and stated that “line
level decisions” were not made by those who should have made them. (PCOE Ex. 71
[Villanueva Depo. 16: 12-15].)
As
previously stated, Individual
Defendants failed to present evidence that they had a supervisory or managerial
role with the authority to criticize or comment on the work ethic of East Los
Angeles deputies. Without more, the Court cannot characterize Defendant Munoz’s
behavior or any other behavior related to the work ethic of East Los Angeles
Deputies, as conduct within the scope of the Individual Defendants’ job
performance rather than “conduct
presumably engaged in for personal gratification, because of meanness or
bigotry, or for other personal motives.” (Janken, supra, 46
Cal.App.4th at 63.)
Moreover,
Plaintiffs’ evidence raises questions as to the scope of influence and power each
Individual Defendant had and whether the actions of other Banditos can be
attributed to each Individual Defendant.
v.
Scope of Power and
Influence of Banditos Leaders
Plaintiffs assert that Individual Defendants were “shot callers” for the
Banditos who effectively ran the East Los Angeles station. As evidence,
Plaintiffs refer to former Sheriff Alex Villanueva’s deposition acknowledging
that the Banditos exercised undue influence at the station. (PCOE Ex. 71
[Villanueva Depo. 16: 12-15].) The existence of the Banditos is undisputed but
what is disputed is the extent of their influence and power at the East Los
Angeles station. Plaintiffs assert that
a “shot caller” is the person calling the shots, the leader of the gang. (PCOE
Ex. 24 [Duran Depo. 23:3-5[.) In his deposition,
Deputy Alan Soohoo asserted his belief based on his personal observation that
all four Individual Defendants were each “shot callers” for the Banditos. (PCOE
Ex. 26 [Soohoo Depo. at 11:9-4; 36:20-25-37:1-4].) At his deposition, Deputy
James Duran testified that he either heard or observed Individual Defendants
being referred to as “shot callers” at the station. (PCOE Ex. 24 [Duran Depo.
at 23:11-25].) Sargent Rosa Gonzalez testified that Defendant Michael Hernandez
himself informed her he was a shot caller. (PCOE Ex. 25 [R. Gonzalez Depo. at
25:20, 117:10-23].) “What I understood is that nothing gets done at the station
on p.m. shift without his – without his approval.” (Id. [R. Gonzalez
Depo. at 104:21-23].)
Individual Defendants failed to present
evidence to rebut Plaintiffs’ evidence that Individual Defendants were not “shot
callers” for the Banditos or that they did not exercise influence or power at
the East Los Angeles station. Therefore, triable issues of fact exist as to
what influence and control each Individual Defendant had in dictating or
directing the actions of other deputies at the East Los Angeles station and
whether they directed other deputies to harass Plaintiffs by not giving them
adequate backup, assigning them excessive calls, sending harassing MDC
messages, and other conduct such as pressuring Plaintiffs to not take overtime.
It
remains undisputed that each Individual Defendant was placed on administrative
leave following the Kennedy Hall incident. (UMF 15.) The Plaintiffs fail to
present facts to show that Individual Defendants continued to have power or
influence over the East Los Angeles station even after Individual Defendants
were placed on leave. However, no other deputies or alleged Banditos members appear
to have been disciplined, fired, placed on administrative leave, or transferred
out of the East Los Angeles station. Therefore, whether the Banditos continued
to operate at the station remains disputed.
More
importantly, a trier of fact can find that any harassing conduct that occurred
while Individual Defendants were employed by the County of Los Angles was at
the direction of each Individual Defendant by virtue of Individual Defendants’
being “shot callers” for the Banditos. Individual Defendants failed to present
evidence showing otherwise.
Regarding
promotions, transfers, and demotions, the evidence is relevant to support a
claim of retaliation against the County of Los Angeles and support claims of a
hostile work environment against the Individual Defendants, but it is
immaterial to this Motion since retaliation claims cannot be brought against
Individual Defendants. (See Jones v. Lodge at Torrey Pines
Partnership (2008) 42 Cal.4th 1158, 1173 [individual coworkers
are not personally liable for retaliation].) Plaintiffs also fail to present
evidence that Individual Defendants had sufficient power to control the
promotions, demotions, and transfer of Plaintiffs such that it can be used as
evidence of harassment against Individual Defendants.
“[I]f the court concludes that the
plaintiff's evidence or inferences raise a triable
issue of material fact, it must conclude its consideration and deny the
defendants' motion.” (Aguilar, supra, 25
Cal.4th at 856.) Defeating summary judgment
requires only a single disputed material fact. (See CCP § 437c(c) [a motion for
summary judgment “shall be granted if all the papers submitted show that there
is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”] [italics added].) Thus, any
disputed material fact means the court must deny the motion – the court has no
discretion to grant summary judgment. (Zavala v. Arce (1997) 58
Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991)
233 Cal.App.3d 1505, 1511-1512.)
Here,
because material facts remain disputed (UMF 5, 9, 13, 263, 267, and 271) that
are common to all Plaintiffs regarding the second cause of action, the Court DENIES
Individual Defendants’ request for summary adjudication as to the second cause
of action.
7th
COA: Intentional Infliction of Emotional Distress
The tort
of intentional infliction of emotional distress (IIED) is committed when the
defendant's conduct is intentionally intrusive and outrageous and has a
traumatic effect on the plaintiff’s emotional tranquility. (Alcorn v. Anbro
Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior may be considered
outrageous if a defendant (1) abuses a relation or position which gives him
power to damage the plaintiff’s interest; (2) knows the plaintiff is
susceptible to injuries through mental distress; or (3) acts intentionally or
unreasonably with the recognition that the acts are likely to result in illness
through mental distress.” (Bogard v. Employers Cas. Co. (1985) 164 Cal.
App. 3d 606, 616.)
Emotional
distress is defined to include all highly unpleasant emotional reactions,
including fright, shock, nervousness, anxiety, worry, horror, grief,
mortification, humiliation, embarrassment, indignity, apprehension, fear,
terror, and ordeal. (Fletcher v. Western Nat’l Life Ins. Co. (1970) 10
Cal.App.3d 376, 379.) Plaintiffs need not have suffered any traumatic emotional
distress of the character of shock, horror or nausea; “the requisite emotional
distress may consist of any highly unpleasant mental reaction such as fright,
grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or
worry.” (Id.) Whether Defendant’s conduct was outrageous, oppressive or
malicious is a question of fact for the jury. (See Alcorn, supra,
Cal.3d at 499.)
Individual Defendants argue that the Plaintiffs’
claim for IIED is barred by the workers’ compensation exclusivity doctrine. The
Court notes that Individual Defendants’ demurrer to Plaintiffs’ IIED claim was
overruled as to this same argument. (See Min. Or. 07/25/22.) A plaintiff “may
pursue a claim for intentional infliction of emotional distress in the
employment context where the conduct at issue violates [the] FEHA and also
satisfies the elements of the claim.” (Light v. Department of Parks &
Recreation (2017) 14 Cal.App.5th 75, 101; see also Cornell v. Berkeley Tennis
Club (2017) 18
Cal.App.5th 908, 945–946; Accardi v. Superior Court (1993) 17
Cal.App.4th 341, 347.) Violation of the FEHA involves conduct that exists
outside of the employment environment such that it is not subject to the exclusivity provisions of the
workers' compensation law. Therefore, Individual Defendants’ argument is
without merit.
Secondly, Individual Defendants argue that
they did not engage in outrageous conduct and that Defendants have not suffered
severe emotional distress. Summary judgment as to the seventh cause of action
is precluded because triable issues of fact exist as to whether Individual
Defendants engaged in harassment or directed other deputies to harass
Plaintiffs.
As stated above, the testimonies of Deputy
Conception Garcia and Deputy Justin Waites, raise triable issues of fact as to
whether the Individual Defendants withheld backup to Plaintiffs. Moreover,
various Plaintiffs testified to seeing Defendant Rafael Munoz order that backup
be withheld to Plaintiff Art Hernandez. Furthermore, the extent of each
Individual Defendants’ influence over other deputies by virtue of being “shot
callers” remains disputed. In addition, triable issues of fact exist as to
whether the various injuries Plaintiffs suffered during the Kennedy Hall
incident are sufficient to show extreme and outrageous conduct by the
Individual Defendants.
“On a summary judgment motion, the court must therefore
consider what inferences favoring the opposing party a factfinder could
reasonably draw from the evidence. While viewing the evidence in this manner,
the court must bear in mind that its primary function is to identify issues
rather than to determine issues. Only when the inferences are indisputable may
the court decide the issues as a matter of law. If the evidence is in conflict,
the factual issues must be resolved by trial” (Binder v. Aetna Life Ins. Co.(1999)
75 Cal.App.4th¿832, 839.) Therefore, the Court need not
adjudicate every issue or every piece of evidence submitted by the parties, but
only identify whether triable issues of fact exist.
Lastly,
Individual Defendants fail to establish each Plaintiff “does not possess, and
cannot reasonably obtain, needed evidence” to show they suffered extreme
emotional distress. (See Aguilar, supra, 25 Cal.4th at 855.)
Therefore, triable issues of fact exist as to whether Plaintiffs’ suffered
extreme emotional distress. (See Barret Decl.; Cohen Decl.)
Since
the Individual Defendants have
failed to show that no triable issues of material fact exist as to the seventh
cause of action, summary adjudication is DENIED.
8th
and 9th COAs: Assault and Battery
“The elements of a cause of
action for assault are: (1) the defendant acted with intent to cause harmful or
offensive contact, or threatened to touch the plaintiff in a harmful or
offensive manner; (2) the plaintiff reasonably believed he was about to be
touched in a harmful or offensive manner or it reasonably appeared to the
plaintiff that the defendant was about to carry out the threat; (3) the
plaintiff did not consent to the defendant's conduct; (4) the plaintiff was
harmed; and (5) the defendant's conduct was a substantial factor in causing the
plaintiff's harm. (Citation) The elements of a cause of action for battery are:
(1) the defendant touched the plaintiff, or caused the plaintiff to be touched,
with the intent to harm or offend the plaintiff; (2) the plaintiff did not
consent to the touching; (3) the plaintiff was harmed or offended by the
defendant's conduct; and (4) a reasonable person in the plaintiff's position
would have been offended by the touching.”
(Carlsen v. Koivumaki (2014)
227 Cal.App.4th 879, 890.)
Individual Defendants move
for summary judgment on the assault and battery causes of action as to
Plaintiffs David Casas, Mario Contreras, and Alfred Gonzalez.
It
is undisputed that Defendant Gregory Rodriguez hit Plaintiff David Casas in the
upper torso during the Kennedy Hall incident. (DCOE Ex. 20 at 88:7-8.) Plaintiff Mario Contreras testified that
during the Kennedy Hall incident, Defendant Gregory Rodriguez hit Plaintiff
Contreras in the face with his elbow. (DCOE Ex. 25 [144:6-9]; PCOE Ex. 43 [215:12-13];
Contreras Decl. ¶¶ 2, 9, 16, 18.) Plaintiff Alfred Gonzalez asserts that
Defendant Rafael Munoz hit him in the head and shoved him to the ground during
the Kennedy Hall incident. (PCOE Ex. 27 [ 11:4-22]; Gonzalez Decl. ¶ 44.) Individual Defendants fail to present
evidence to the contrary. Therefore, Individual Defendants fail to show
that the assault and battery claims should be dismissed. (See People v. Yeats (1977) 66 Cal.App.3d 874, 878 [“Every completed battery
includes an assault[.].”)
Summary adjudication as to the eighth and
ninth causes of action is DENIED.
Additional Disputed Facts
Individual Defendants’
separate statement makes reference to Plaintiffs’ Exhaustion of Administrative
Remedies. Individual Defendants do not raise the issue in their moving papers
nor rebut Plaintiffs’ evidence as to these alleged material facts.
Therefore, the Court
considers the issue waived and the following material facts to be disputed: UMF
¶¶¶ 77, 78, 95, 96, 129, 130, 150, 151, 175, 176, 198, 199, 226, 227, 256, 257,
335, 336, 358, 359, 398, 399, 422, 423, 450, 451, 477, 478, 508, 509, 541, and
542.
Based on the foregoing, Individual
Defendants’ Motion for Summary Judgment, or Summary Adjudication in the
alternative, is DENIED.
CONCLUSION
Individual Defendants’
Motion for Summary Judgment, or Summary Adjudication in the alternative, is
DENIED.
Defendant to
give notice.