Case Number: 19STCV03600 Hearing Date: January 22, 2020 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

AUDREY GARNER, ET AL.,

Plaintiff(s),

vs.

IAN A. LEVIN, M.D., ET AL.,

Defendant(s).

CASE NO: 19STCV03600

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

January 22, 2020

1. Background Facts

Plaintiffs, Audry And Andrew Garner filed this action against Defendants, Ian A. Levin, M.D., Henry Mayo Newhall Memorial Hospital, and Sheila R. Veloz Breast Center for medical malpractice and loss of consortium.

2. Motion for Summary Judgment

a. Moving Argument

At this time, the Hospital and Breast Center move for summary judgment, contending they complied with the standard of care at all times. Defendants support their motion with the expert declaration of Pulin Sheth, M.D. Dr. Sheth sets forth his expert credentials, states what records he reviewed, detail Defendants’ care and treatment of Plaintiff, and ultimately conclude that Defendants’ care and treatment of Plaintiff complied with the standard of care at all times.

b. Standard of Care

The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts. Elcome v. Chin (2003) 110 Cal.App.4th 310, 317. Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony. Id. If the “common knowledge” exception does not apply to a medical malpractice action, expert evidence is conclusive and cannot be disregarded. Id.

A medical practitioner is not necessarily negligent just because he chooses one medically acceptable method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. CACI 506. Likewise, a medical practitioner is not necessarily negligent just because his efforts are unsuccessful or he makes an error that was reasonable under the circumstances. CACI 505.

Whether the standard of care in the community has been breached presents the basic issue in a malpractice action and can only be proved by opinion testimony unless the medical question is within the common knowledge of laypersons. See Jambazian v. Borden (1994) 25 Cal.App4th 836, 844. “‘When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.’“ (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

c. Moving Burden

The Expert Declaration of Dr. Sheth is sufficient to meet Defendants’ moving burden to establish they are entitled to judgment as a matter of law. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact in this regard.

d. Opposing Burden

Any opposition to the motion was due on or before 1/08/20. The Court has not received any opposition to the motion. On the contrary, on 1/08/20, Plaintiffs filed a notice of non-opposition to the motion. Plaintiffs therefore necessarily failed to meet the shifted burden, and the motion is granted.

e. Notice

Moving Defendants are ordered to give notice.

Case Number: 19STCV04471 Hearing Date: January 22, 2020 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MARGIANNE REYNOLDS,

Plaintiff(s),

vs.

RACHEL GARCIA, et al.,

Defendant(s).

Case No.: 19STCV04471

[TENTATIVE] ORDER GRANTING MOTION TO COMPEL DEPOSITION; DENYING MOTION TO COMPEL PRODUCTION OF DOCUMENTS AT DEPOSITION

Dept. 31

1:30 p.m.

January 22, 2020

Defendant has noticed Plaintiff’s deposition on multiple occasions. Plaintiff failed to appear at her properly noticed deposition on 11/14/19, and has not responded to communication attempting to reschedule the deposition. At this time, Defendants move to compel Plaintiff’s deposition, to compel production of documents at deposition, and seeks to recover sanctions.

The motion to compel is granted. CCP §2025.450(a) requires the Court to grant a motion to compel deposition unless the deponent has served a valid objection to the notice of deposition. Plaintiff did not object to the notice of deposition, but did not appear. Of note, any opposition to the motion was due on or before 1/08/20. The Court has not received opposition to the motion.

Plaintiff is ordered to appear for deposition on 2/26/20 at 10:00 a.m. at the Law Office of Mark R. Weiner & Associates, 655 N. Central Ave, Suite 1125, Glendale, CA 91203.

The Court notes that the notice of deposition includes a demand for production of documents, and Defendant seeks an order compelling Plaintiff to produce all identified documents at her deposition. The moving papers fail to show good cause for production of the documents sought, as required by §2025.450(b)(1). There is no discussion of good cause, and therefore the Court declines to enter an order compelling Plaintiff to produce documents, but urges the parties to work together to resolve any issues concerning documents without court intervention.

Defendant seeks sanctions against Plaintiff in the amount of $1001.15. Sanctions are mandatory. §2025.450(c). The Court finds the amount reasonable and fully supported by Defense Counsel’s declaration. Plaintiff, in pro per, is ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $1001.15, within twenty days.

Defendant is ordered to give notice.

Filed 1/22/20 Bitonti v. Kaiser Foundation Hospitals CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHN BITONTI,

Plaintiff and Appellant,

v.

KAISER FOUNDATION HOSPITALS,

Defendant and Respondent.

B282877

(Los Angeles County
Super. Ct. No. BC604000)

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth R. Feffer, Judge. Affirmed.

JML Law and Jennifer A. Lipski for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza and Dana L. Stenvick for Defendant and Respondent.

INTRODUCTION

Appellant John Bitonti appeals from a summary judgment entered in favor of his former employer, respondent Kaiser Foundation Hospitals (Kaiser), on his claim of disability discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., and related claims. Bitonti, who has diabetes, took five disability-related leaves of absence in the nearly four-year period from January 2011 to November 2014. Kaiser granted each of Bitonti’s requests for disability-related leave in full and without exception. More than a month after Bitonti’s return from his final leave of absence, Kaiser was put on notice of multiple employees’ allegations that Bitonti had engaged in misconduct. Kaiser placed Bitonti on administrative leave and interviewed 13 witnesses about the allegations, in addition to additional allegations of misconduct that surfaced during its investigation. Kaiser found that Bitonti had committed five types of misconduct and terminated him.

Bitonti sued Kaiser, alleging that his termination was discriminatory or retaliatory because it was motivated by his past or anticipated future disability-related leaves of absence. Kaiser moved for summary judgment, relying principally on evidence that Bitonti’s termination was motivated by its misconduct findings. In opposition to the motion, Bitonti failed to dispute many facts underlying the misconduct findings. He nevertheless argued a jury reasonably could find his termination was substantially motivated by disability, relying principally on the timing of the termination decision relative to his return from his final leave of absence, and on his testimony that his direct supervisor had complained about two earlier leaves of absence and required him to complete extra work upon his return from one. That supervisor’s own employment with Kaiser ended as a result of Kaiser’s investigation into Bitonti’s alleged misconduct. The trial court granted Kaiser summary judgment, finding, inter alia, that Bitonti had failed to produce sufficient evidence, in the face of Kaiser’s showing of nondiscriminatory reasons for Bitonti’s termination, to allow a reasonable jury to infer that his termination was discriminatory.

On appeal, Bitonti contends the trial court erred with respect to all his causes of action except his cause of action for retaliation. Finding no error, we affirm.

FACTUAL BACKGROUND

A. Bitonti’s Leaves of Absence
B.
Bitonti has diabetes. Beginning in 2002, Bitonti worked for Kaiser as the Assistant Director of Food and Beverage Retail at Kaiser’s Harbor City Medical Center. His duties included oversight of the center’s cafeteria, kitchen, and catering. As a supervisor, he was required by Kaiser policy to review the amount of sick time used by his subordinates. Bitonti has identified no evidence concerning Kaiser’s application of this policy.

Bitonti took a disability-related leave of absence from January 11 to April 10, 2011. At the time, Joseph Libertucci was his direct supervisor. Lucila Santos, who also reported to Libertucci, was senior to Bitonti but did not directly supervise him. Bitonti testified at his deposition that “there were real problems” in his relationship with Santos, which he attributed to Santos’s wanting to do things her own way. He claimed that before he took his leave of absence, Santos commented on it and complained about there being “so much work” to be done. He further claimed that Libertucci, by “innuendo,” complained about Bitonti’s leave of absence. Upon further questioning, Bitonti acknowledged he could not remember what Libertucci said and confirmed that he “really didn’t say much.”

Bitonti took another disability-related leave of absence from January 4 to January 22, 2012. Shortly after his return, he received a performance evaluation indicating his performance needed to improve, and he was placed on a performance improvement plan. He was placed on performance improvement plans again in May 2012 and in July 2012.

In late 2012 or early 2013, Santos replaced Libertucci as Bitonti’s direct supervisor. In April 2013, Bitonti told Santos he had suffered a workplace injury when a can dropped on his toe. Santos asked who saw the accident and, after Bitonti told her that he was the only witness, told him she did not believe him.

Bitonti took another disability-related leave of absence from May 1 to June 18, 2013. On the day of his return from leave (June 19), Bitonti emailed a human resources consultant, requesting a meeting to follow up on a timekeeping audit the consultant and Santos had discussed with him before his leave. The consultant responded that Santos would meet with him. Several days later, Bitonti emailed the consultant again, stating that Santos had interpreted the opinions he expressed during the meeting “as an assault on her leadership,” and that he expected the consultant to hear from Santos because she could be a “very vindictive and spiteful person.”

At his deposition, Bitonti testified that upon his return from leave in June 2013, Santos commented to the effect of, “I hope this is it about you going out because we have a lot of work to get done.” He told another human resources consultant, Tina Simmons-Parish, about Santos’s comment. Simmons-Parish responded that Santos’s comment was unacceptable.

Bitonti further testified that upon his return from leave in June 2013, Santos required him to do extra work that took two weeks to complete. Santos required him to do “the whole budget,” even though he had done only parts of it before. Santos also required him to process a backlog of paperwork that typically would have been processed by Bitonti himself during his leave of absence. Bitonti acknowledged, however, that Santos “tried to have some of the dietitians doing the work” during his leave. He further acknowledged that this was the first time Santos (who had recently replaced Libertucci as Bitonti’s supervisor) had been responsible for the budget.

Bitonti also testified that upon his return from leave in June 2013, he heard that Santos had conducted an unnecessary evaluation of an employee with a disability and forced the employee to come to work on his days off. Bitonti acknowledged, however, that he was on leave when Santos allegedly required the evaluation, and that he did not know whether the employee was compensated for his time.

In July 2013, Santos placed Bitonti on another performance improvement plan, scheduled to continue through December 2013.

Bitonti took another disability-related leave of absence from August 26 to August 28, 2013. He took a final disability-related leave of absence from September 30 to November 3, 2013. He did not allege that Santos or anyone else commented upon these leaves of absence or required him to complete extra work upon his return.

C. Misconduct Allegations and Findings
D.
More than a month after Bitonti returned from his final leave of absence (on December 8, 2013), Santos emailed Human Resources Director Doug Pruss, reporting recent allegations that Bitonti had mistreated staff. Santos wrote, “I could not help to speculate if [Bitonti] is doing these intentionally to prove for stress leave so he can go out again to avoid f/ups of his PIP or a tactic to wear me off with issues to solve so I cannot move forward.” As noted, Santos had placed Bitonti on a performance improvement plan scheduled to end that month. The next day (December 9), a union steward separately complained that Bitonti was harassing staff. Pruss asked human resources consultant Simmons-Parish to investigate all the allegations.

Four days after Santos conveyed the initial allegations to Pruss (on December 12), Simmons-Parish delivered a letter to Bitonti, placing him on paid administrative leave. The letter stated, “[W]e ask that you not contact other [Kaiser] employees during your period of leave. . . . Non-adherence to this may result in disciplinary action.” While Bitonti was on administrative leave, Kaiser made a severance offer that Bitonti rejected.

On February 20, 2014, Compliance and Privacy Officer Nancy Hays received an anonymous call alleging that employees in Bitonti’s department had engaged in compliance training fraud (specifically, certain employees had completed the required training for other employees). Hays, charged with investigating the alleged fraud, joined Simmons-Parish’s investigation.

Simmons-Parish and Hays interviewed 13 employees about Bitonti’s alleged misconduct. Santos was one of these 13 witnesses, but did not participate in any interviews of the other 12. Simmons-Parish and Hays then prepared an executive summary of their investigation, followed by a final report. They reported that many members of Bitonti’s staff “either admitted to taking training for others under John Bitonti’s direction or having the training taken for them.” They further reported that Bitonti had engaged in two other types of “fraud,” related to his company credit card and to employee time cards. Finally, they reported that the interviewed employees had consistently described a history of intimidation, harassment, retaliation, and favoritism on Bitonti’s part, including daily threats to fire employees, retaliatory assignments of work to employees who defied him or protested his behavior, and a pattern of unfairly placing blame on a single employee, who took a stress-induced leave of absence as a result.

Simmons-Parish and Hays also reported that Santos admitted she knew Bitonti’s staff had likely committed compliance training fraud, but had not reported it. Simmons-Parish declared that Santos was “asked to resign” after Bitonti was terminated. Santos testified that she resigned earlier (in February 2013) and voluntarily, but acknowledged that she resigned in response to her manager telling her she should have reported the fraud.

E. Bitonti’s Termination
F.
Simmons-Parish testified that she recommended Bitonti’s termination. Pruss (produced as Kaiser’s person most qualified regarding, inter alia, the reasons for Kaiser’s decision to terminate Bitonti) testified that he advised management to terminate Bitonti after reviewing the investigation findings with Simmons-Parish and then with in-house counsel. Management then made the termination decision.

On the day of Bitonti’s termination (April 2, 2014), Simmons-Parish and Hays jointly interviewed Bitonti about their misconduct findings. Hays declared that Bitonti failed to provide “adequate or acceptable” explanations for their findings. Simmons-Parish notified Bitonti of his termination at the end of the interview by handing him a termination memorandum.

The termination memorandum stated Bitonti was terminated for committing five types of misconduct: (1) “Falsification of Compliance Training,” referring to the alleged compliance training fraud; (2) “Timecard Fraud,” referring to allowing at least one employee to be paid for work when off the clock; (3) “Unauthorized Use of KP Credit Card and Negligent Purchases,” referring to Bitonti’s allowing another employee to use his company credit card, using unauthorized vendors, and shipping items purchased for Kaiser to his home; (4) “Inappropriate Behavior,” referring to Bitonti’s “abusive behaviors” and his allowing a group of employees to “engage[] in similar fear tactics”; and (5) “Insubordination,” referring to Bitonti’s having violated the no-contact directive while he was on administrative leave. The termination memorandum also mentioned “a pattern of substandard performance” reflected in Bitonti’s performance improvement plans. Pruss and Simmons-Parish testified that the five categories of misconduct identified in the termination memorandum were the sole reasons for Bitonti’s termination.

G. Proceedings Below
H.
Bitonti filed a complaint against Kaiser, raising five causes of action: (1) a FEHA cause of action for disability discrimination; (2) another FEHA cause of action, for failure to prevent disability discrimination; (3) a third FEHA cause of action, for retaliation for requesting reasonable accommodation of a disability; (4) a cause of action for “wrongful termination in violation of [FEHA]”; and (5) a cause of action for wrongful termination in violation of public policy, viz., the public policy embodied in FEHA. Kaiser moved for summary judgment, arguing, inter alia, that Bitonti’s termination was motivated by Kaiser’s misconduct findings, and that Bitonti lacked evidence from which a reasonable jury could find his termination was substantially motivated by disability.

Bitonti opposed the motion. In his separate statement, Bitonti did not dispute that Kaiser granted each of Bitonti’s requests for disability-related leave “in their entirety, without exception.” Bitonti did not dispute that “several women” (members of his staff) cried after he spoke to them. Bitonti did not dispute that employees reported they had taken stress leave related to Bitonti’s behavior. He did not dispute that he talked with “some employees” while he was on administrative leave (although he claimed they initiated contact with him). He did not dispute that on two or three occasions, he gave his company credit card to another employee to make purchases. And he did not dispute that Kaiser prohibited employees from using personal credit cards to make purchases on Kaiser’s behalf, that he did so, or that he shipped security cameras purchased on Kaiser’s behalf to his home.

At the hearing on the motion, the trial court found no evidence that Bitonti had “suffered any adverse employment action as a result of taking any leave . . . .” It noted Bitonti’s failure to dispute that several members of his staff cried after he spoke to them, that employees reported his behavior caused them to take stress leave, that he had contact with employees while on administrative leave, that he allowed another employee to use his company credit card on two or three occasions, or that he shipped security cameras purchased on Kaiser’s behalf to his home. It noted that Kaiser investigated the allegations of compliance training fraud. The court acknowledged that Bitonti had offered “excuses for the behavior he engaged in,” but found there was “really no factual dispute” regarding whether he had engaged in that behavior. It thus found that Kaiser had satisfied its burden to show nondiscriminatory reasons for the termination decision. It further found that Bitonti had failed to produce sufficient evidence, in the face of Kaiser’s showing, to allow a fact finder to infer that his termination was discriminatory. Accordingly, the court ruled that Kaiser was entitled to summary adjudication of Bitonti’s disability discrimination claim, as well as his derivative claims of failure to prevent discrimination and of wrongful termination. Finally, noting that Bitonti had failed to respond to Kaiser’s argument that his retaliation claim was premised on unprotected activity, the court ruled that Kaiser was entitled to summary adjudication of that claim as well. Having disposed of all of Bitonti’s causes of action, the court granted Kaiser summary judgment.

DISCUSSION

Bitonti contends the trial court should have denied Kaiser summary judgment and further denied summary adjudication of all of Bitonti’s causes of action except his cause of action for retaliation. The parties agree that Bitonti’s causes of action for failure to prevent discrimination and for wrongful termination are derivative of his disability discrimination cause of action. Thus, the dispositive issue is whether the trial court erred in granting Kaiser summary adjudication of the disability discrimination claim.

We review a grant of summary judgment de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) “A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Id. at pp. 1002-1003, citing Code Civ. Proc., § 437c, subd. (c).) Where the plaintiff would have the burden of proof by a preponderance of the evidence at trial, the defendant may establish the absence of a triable issue by “present[ing] evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true” or by “presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.]” (Kahn v. East Side Union High School Dist., supra, at p. 1003.)

A. Disability Discrimination Principles
B.
FEHA prohibits an employer from discharging any person from employment — or otherwise discriminating against the person in terms, conditions, or privileges of employment — because of the person’s disability (physical or mental). (Gov. Code, § 12940, subd. (a).) To establish an employer’s liability for disability discrimination, a plaintiff must show his disability was a substantial motivating factor in the challenged employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231-232; Cal. Code Regs., tit. 2, § 11009, subd. (c).) The plaintiff may meet this burden by showing the employment decision was substantially motivated by the employer’s desire to avoid incurring the cost or inconvenience of the employee’s future disability-related leave of absence. (See, e.g., Moore, supra, 248 Cal.App.4th at pp. 228, 237-241 [employer was not entitled to summary adjudication of disability discrimination claim, where employee’s boss referred to her as a “‘liability’” because of her heart condition and terminated her shortly after she requested leave to undergo surgery]; Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 657-658 [employee adequately pleaded disability discrimination claim by alleging he requested leave to donate kidney to sister and employer terminated him “to avoid having to incur the expense of his leave”], superseded by statute on another ground as discussed in Moore, supra, at pp. 245-247; cf. Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1042-1046 [employer was not entitled to summary adjudication of disability discrimination claim, where evidence supported reasonable inference that employee’s boss terminated him “to avoid the inconvenience and distraction” posed by the employee’s anticipated requests to work earlier shifts to provide disability-related care for his son].)

“In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . . . .” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.) The three stages of this burden-shifting approach are: (1) the plaintiff’s burden to establish a prima facie case by providing evidence that (a) he had a protected characteristic; (b) he was qualified for his position or performed competently in it; (c) he suffered an adverse employment action; and (d) his protected characteristic motivated the action; (2) the employer’s burden to proffer a nondiscriminatory reason for the action; and (3) the plaintiff’s burden to show that the employer’s proffered reasons are pretexts for discrimination or to produce other evidence of a discriminatory motive. (See id. at p. 1181.) A court reviewing an employer’s motion for summary judgment on discrimination claims must “‘base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.’ [Citation.]” (Id. at p. 1191.) “This ‘totality of circumstances analysis’ allows courts to ‘winnow[] out cases “too weak to raise a rational inference that discrimination occurred.”’ [Citation.]” (Ibid.)

C. Analysis
D.
The trial court properly granted Kaiser summary adjudication of Bitonti’s disability discrimination cause of action because Bitonti failed to produce evidence from which a reasonable jury could find that Bitonti’s termination was substantially motivated by disability. Bitonti bore the burden of producing such evidence (even assuming arguendo that a reasonable jury could find he established a prima facie case) because Kaiser produced evidence that its termination decision was motivated by nondiscriminatory considerations, viz., findings that Bitonti had committed several types of misconduct. As the trial court found, Bitonti did not materially dispute the accuracy of Kaiser’s misconduct findings; nor does he dispute their accuracy on appeal. Instead, he argues Kaiser decided to terminate him before its investigation substantiated the misconduct allegations, supporting a reasonable inference that Kaiser substantially relied on some consideration other than its misconduct findings. Bitonti further argues that the record supports a reasonable inference that Kaiser was substantially motivated by “animus toward Bitonti’s disability and need for medical leaves of absence.” We disagree.

Bitonti did not dispute that Kaiser granted each of Bitonti’s requests for disability-related leave — including five such requests in the nearly four-year period preceding the misconduct allegations — “in their entirety, without exception.” Bitonti requested his final leave of absence on or before September 30 (the day his leave began). Kaiser took no action against him between his request for leave and his leave’s commencement. Kaiser took no action against him while he was on leave throughout the month of October. Even after he returned to work on November 4, Kaiser took no action against him until it placed him on administrative leave — more than a month after he returned from leave, and only four days after the initial allegations of misconduct surfaced. The misconduct allegations were the new variable; Bitonti’s uneventful return from leave was the norm.

Much of the purported evidence of disability-related animus on which Bitonti relies is irrelevant or otherwise inadmissible. (See Evid. Code, § 350 [irrelevant evidence is inadmissible]; Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543 [“A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial”].) First, Bitonti relies on his deposition testimony that Santos required an employee with a disability (apparently unrelated to diabetes, Bitonti’s own disability) to undergo an unnecessary evaluation over two of that employee’s days off. This testimony is inadmissible for lack of personal knowledge (see Evid. Code, §§ 403, subd. (a)(2), 702, subd. (a)); Bitonti testified that he was on a leave of absence when Santos allegedly required the evaluation, and that he did not know whether the employee was paid for those two days. Second, Bitonti relies on a Kaiser policy that required supervisors to monitor the amount of sick leave employees used, arguing the policy “tended to penalize or target disabled employees . . . .” This policy is irrelevant, as Bitonti identified no evidence concerning its application, let alone any evidence that Kaiser applied the policy in a manner targeting employees with disabilities. Finally, Bitonti relies on his allegation that in early 2011, Libertucci (his direct supervisor at the time), by “innuendo,” complained about Bitonti taking a leave of absence. But at his deposition, Bitonti admitted he could not remember what Libertucci said, and that Libertucci “really didn’t say much.” Moreover, Libertucci’s alleged conduct occurred years before Kaiser made its termination decision, in which Libertucci did not participate. Libertucci’s alleged remarks are too vague and too remote from the termination decision to be relevant.

Santos’s alleged remarks, although less vague and less remote than Libertucci’s, did not raise a reasonable inference that Santos acted on disability-related animus in a manner that substantially influenced Kaiser’s decision to terminate Bitonti. Bitonti testified that Santos complained about his taking leaves of absence before his leave of absence in January 2011 (when she was not his supervisor) and upon his return from leave in June 2013 (when she was), noting that there was a lot of work to be done. FEHA, however, is not a “civility code.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1061, citing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.) It shields an employee from discrimination based on the employee’s need for disability-related leave, but does not shield the employee from the grumbling of inconvenienced coworkers. (Cf. Holmes v. Petrovich Development Co., LLC, supra, at pp. 1052-1055, 1060-1061 [plaintiff who resigned in response to alleged pregnancy-related harassment failed to raise triable issues on harassment claim, despite proof that her boss complained the length and timing of her maternity leave imposed “extreme hardship” on him and his business and “‘greatly upset [him],’” where her boss promised to “‘“get over it”’”].) Despite relying on Santos’s alleged grumbling in 2013 about the work to be done if Bitonti took leave again, Bitonti identified no evidence that she complained when he took two more disability-related leaves of absence later that year. Nor did Bitonti identify any evidence that Santos ever commented on Bitonti’s disability. Indeed, although Santos mentioned the possibility that Bitonti would take leave again when relaying the initial misconduct allegations to Pruss, she made no reference to Bitonti’s diabetes or any other disability. Instead, as Bitonti acknowledges on appeal, she speculated that Bitonti was “faking” stress. Santos’s alleged remarks do not support a reasonable inference that she acted on disability-related animus to the extent, if any, she attempted to influence Kaiser to terminate Bitonti.

Nor is such an inference supported by Bitonti’s allegation that Santos allegedly required him to complete extra work over the two weeks following his return from leave in June 2013. Bitonti testified that Santos required him to process paperwork that typically would have been processed (by Bitonti himself) during his leave of absence, but he acknowledged that Santos “tried to have some of the dietitians doing the work . . . .” He identified no evidence that this attempt to “cover” Bitonti’s work failed as a result of disability-related animus. Bitonti further testified that Santos required him to do the “whole” budget for the first time, but he acknowledged that this was the first time Santos was responsible for the budget (she had recently replaced Libertucci as Bitonti’s supervisor). There was therefore no evidence that Santos changed her approach to the budget to punish Bitonti for his leave of absence or dissuade him from taking another. Indeed, Bitonti took two more leaves of absence (one exceeding a month in length) later that year, and did not allege that Santos required him to complete any extra work upon his return. The initial misconduct allegations surfaced over a month after his return. Although Santos participated in the misconduct investigation by relaying these initial allegations and serving as a witness, no reasonable jury could find that animus toward Bitonti’s disability motivated her participation.

Even had we found a triable issue regarding whether Santos’s minor participation in the investigation was motivated by disability-related animus, we would find no triable issue regarding whether her animus influenced Kaiser’s termination decision. According to Pruss’s and Simmons-Parish’s testimony, the decision makers were Simmons-Parish, Pruss, and Pruss’s “management” superiors. Bitonti identified no evidence that Santos participated in the termination decision, or that she discussed Bitonti’s disability-related leave with the decision makers in a manner that might have influenced their decision. Moreover, there is evidence that the decision makers would have been unwilling to act as conduits for any animus Santos expressed. Bitonti testified that Simmons-Parish, when informed that Santos had complained in June 2013 about his leave of absence and expressed hope he would not take leave again, had responded that Santos’s comment was unacceptable. Further, Simmons-Parish’s finding that Santos knew of but failed to report the compliance training fraud directly led to the end of Santos’s own employment with Kaiser (either Kaiser asked her to resign, as it claims, or she resigned in response to Kaiser’s faulting her for failing to report the fraud, as she testified).

The totality of the circumstances demonstrates that Kaiser had multiple non-disability-related reasons for terminating Bitonti’s employment, ranging from his unacceptable behavior toward numerous employees to his violation of company policies involving timekeeping and the unauthorized use of credit cards. As the trial court noted, there was “really no factual dispute” regarding much of his conduct. Faced with this evidence, Bitonti offered no admissible evidence raising a reasonable inference that his termination was substantially motivated by disability discrimination. (See Serri, supra, 226 Cal.App.4th at p. 868 [evidence that raised “only a weak suspicion” of discriminatory basis for termination was insufficient to defeat summary judgment]; Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 369-370 [same].) We therefore affirm the trial court’s summary adjudication of Bitonti’s disability discrimination cause of action. Because Bitonti’s arguments concerning his other causes of action are derivative of his rejected arguments on the disability discrimination cause of action, we affirm the trial court’s entry of summary judgment in Kaiser’s favor.

DISPOSITION

The judgment is affirmed. Kaiser is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.

Filed 1/22/20 Soto v. Union Pacific Railroad Company CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

IRMA YOLANDA MUNOZ SOTO,

Plaintiff and Appellant,

v.

UNION PACIFIC RAILROAD COMPANY, et al.,

Defendants and Respondents.

B289712

(Los Angeles County

Super. Ct. No. BC638956)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed.

Haffner Law, Joshua H. Haffner, Graham G. Lambert, Michael K. Teiman; Martinian & Associates, Tigran Martinian and Suzanna Abrahamian for Plaintiff and Appellant.

Pacific Employment Law, Joseph P. Mascovich; Union Pacific Railroad Co., Melissa Ann Sandoval; Murphy, Campbell, Alliston & Quinn and Stephanie Lynn Quinn for Union Pacific Railroad Company, Robert Finch and Scott King.

_______________________

Irma Yolanda Munoz Soto sued Union Pacific Railroad Company and two of its employees, Scott King and Robert Finch (collectively Union Pacific parties), for wrongful death (premises liability and general negligence) after Soto’s 16-year-old daughter was struck and killed by a freight train on an at-grade railroad crossing in Santa Clarita. The court granted the Union Pacific parties’ motion for summary judgment, concluding as to Soto’s premises liability claim Union Pacific had no duty to remedy a dangerous condition because it did not own or control the railroad crossing. As to Soto’s negligence claim, the court ruled Soto could not establish that Union Pacific employees had negligently operated the train. On appeal from the judgment entered after the motion was granted, Soto contends she raised triable issues of material fact sufficient to defeat summary judgment. Although we cannot overstate the tragic scope of Soto’s loss, based on the evidence and governing law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident
2.
Soto’s teenage daughter, Kimberly Jimenez-Soto, routinely walked along an unpaved path near the intersection of Rainbow Glen Drive and Soledad Canyon Road in Santa Clarita to get to her school bus stop. To reach the bus stop, it is necessary to traverse an at-grade railroad crossing for a railway line (then known as the Saugus line), which runs parallel to and just south of Soledad Canyon Road. The railway line is owned by the Southern California Regional Rail Authority, doing business as Metrolink.

The railroad crossing was marked with signs, flashing lights, warning bells, a mast and cantilever structure containing additional lights, and automatic levers that lowered as trains approached the crossing, preventing vehicular traffic from entering the crossing until after the trains had passed. There was no separate pedestrian barrier or gate.

On the morning of November 7, 2014, as Jimenez-Soto and other children took their regular route to the bus stop, the bells, whistles, flashing lights and automatic lever blocking vehicular traffic were all working and activated, indicating the approach of an oncoming train. Jimenez-Soto, walking on the unpaved path with her head down, did not heed any of the warnings. She continued unimpeded through a large open space near the vehicular gates and stepped directly onto the tracks. Almost immediately, a Union Pacific freight train, operated by conductor Robert Finch and engineer Scott King, fatally struck Jimenez-Soto.

3. Soto’s Lawsuit
4.
Soto’s wrongful death action alleged causes of action for premises liability (against Union Pacific only) and negligence (against all the Union Pacific parties). As to the first claim, Soto alleged Union Pacific owned the crossing, knew it posed a danger to the public and failed to ensure proper safety measures, such as a pedestrian barrier, were in place to prevent or discourage children from accidentally walking onto the track. In support of her negligence cause of action, Soto alleged Finch and King had breached their duty of care to operate the train safely and Union Pacific was vicariously liable for their negligence.

5. The Union Pacific Parties’ Motion for Summary Judgment
6.
a. Premises liability
b.
The Union Pacific parties moved for summary judgment. Addressing Soto’s cause of action for premises liability, Union Pacific argued it had no duty to make the premises safe for pedestrians because it did not own, possess or control the railroad tracks, the land or the crossing. Union Pacific supplied evidence that its predecessor-in-interest, Southern Pacific Transportation Company, sold the land, the railroad tracks and all improvements in October 1990 to the Los Angeles County Transportation Commission (Commission), the predecessor-in-interest to Metrolink. In 1992 Southern Pacific and the Commission entered into a shared-use agreement to delineate “their respective rights and obligations concerning operation of the Saugus [l]ine after its acquisition by the Commission . . . and to preserve [Southern Pacific’s] Rail Freight Service both now and in the future on a service competitive-basis.” In the agreement the Commission granted Southern Pacific an “easement and trackage rights on and over” the Santa Clarita crossing.

Section 2.2 of the shared-use agreement granted Union Pacific the right to use the tracks, crossing and the warning systems (collectively “shared-use facilities”) for its freight train service. Union Pacific had no other rights to those facilities “other than the rights expressly provided” in the shared-use agreement. The agreement also provided that Metrolink, which owned the shared-use facilities, had “exclusive control” over their operation, maintenance and repair.

Citing the shared-use agreement, Union Pacific argued it had only a limited easement to use the tracks for its freight train service. Because it did not own, possess or control the crossing, Union Pacific asserted, it had no duty to ameliorate any dangerous condition located on the property, including the duty to construct a pedestrian barrier.

c. The negligence claim
d.
The Union Pacific parties argued they were not negligent as a matter of law in operating the freight train. In support of their motion they submitted the expert declaration of Brian P. Heikkila, a railroad consultant with more than 40 years’ experience in the railroad industry. Heikkila had reviewed the track imaging recording (TIR), which, among other data, contained a video recording of the view from the front of the train as it approached the crossing and struck Jimenez-Soto. He also reviewed, among other materials, Union Pacific’s Air Brake and Train Handling Rules, the General Code of Operating Rules (GCOR) for railroads in the United States and Metrolink’s System Special Instructions and Additions and Revisions to the GCOR.

In Heikkila’s opinion the train was operated in full compliance with federal regulations and all Union Pacific safety guidelines and could not have been stopped prior to its impact with Jimenez-Soto. Heikkila explained, “Engineer King was operating [the train] at approximately 44 m.p.h. leading up to and at the time of the incident, which was in compliance with the 45 m.p.h. timetable speed limit set for freight trains by Metrolink at this location, and well below the 60 m.p.h. federal freight train speed limit for [Federal Railroad Administration (FRA)] Class 4 track (49 C.F.R. Part 213.9). . . . [¶] . . . My analysis of the TIR and event recorder data also indicates that the warning bell and warning horn sequence sounded by Engineer King commenced approximately 18 seconds prior to the train’s arrival at the Rainbow Glen Drive crossing, as required by the [GCOR] (GCOR, Rule[s] 5.8.1, 5.8.2) and FRA regulations (49 C.F.R. Part 222.21), thereby providing a total of approximately 19 seconds of bell and horn warning prior to impact.

“. . . The Rainbow Glen Drive grade crossing features an array of warning devices for approaching pedestrians and motorists that includes railroad crossing pavement markings, reflectorized cross buck warning signs, mast-mounted red flashing warning lights, automated crossing gates with additional red flashing warning lights, and warning bells that are activated by approaching trains. . . . A review of the TIR and witness testimony indicates that the gates, lights, and bells were activated during the train’s approach and at the time of the incident.

“. . . Based on my analysis of the TIR video . . . Ms. Jimenez-Soto was first present on the track at the Rainbow Glen Drive crossing approximately 1.2 seconds prior to impact. Analysis of the event recorder and TIR also indicates that Engineer King put the train into emergency braking shortly after impact, which then required a distance of approximately 1,096 feet to stop over a period of approximately 32 seconds. In order to have stopped the train prior to impact, it would have been necessary to apply the emergency brakes approximately 1,096 feet prior to impact. However, at that point, the train would have been more than 16 seconds away, not counting perception-reaction time, with no indication to the crew of any need to apply the emergency brakes.

“. . . [T]he first opportunity for Engineer King to get a glimpse of Ms. Jimenez-Soto beginning to pass the lowered crossing arm and the mast it was attached to, was approximately 3.2 seconds prior to impact. However, in order to have stopped the train prior to the impact, it would have been necessary to apply the emergency brakes approximately 1,096 feet prior to impact. At that point, the train would have been more than 16 seconds away, not counting perception-reaction time, with no indication to the crew of any need to apply the emergency brakes.

“. . . Under the circumstances, during the closing seconds prior to impact when Ms. Jimenez-Soto first stepped past the gate there was no opportunity for the crew to stop or slow the train, or take any additional evasive action that could have prevented the incident. [¶] . . . In summary, based on my site inspection and review of the materials, the train was operated in accordance with Union Pacific rules and federal regulations, and consistent with standards of care in the railroad industry. . . .”

In their separate declarations in support of Union Pacific’s motion, train conductor Finch and locomotive engineer King stated the train was travelling eastbound at approximately 45 miles per hour. About one-quarter mile from the crossing, at the location of the whistle board, King sounded the locomotive’s horn in the proper sequence (two long sounds, a short sound, and a long sound). As the train approached the crossing, both Finch and King observed Jimenez-Soto walking northbound “about 100 yards” from the crossing. At the time of their observation, all safety features had been activated at the crossing: The crossing arm gates were in the downward position; the warning lights were flashing; and vehicular traffic was stopped behind the gates. King continued to sound the horn. Suddenly, Jimenez-Soto “walk[ed] past the activated warning devices and past the area where the cars were stopped” and onto the tracks. As soon as he saw Jimenez-Soto step onto the tracks, King moved the locomotive controls from the power position to idle and applied the emergency brakes.

The Union Pacific parties also provided the deposition testimony of Frank Ferraro, who was in his car behind the vehicular gates, waiting for the train to pass, when the accident occurred. Ferraro testified he saw Jimenez-Soto weave through other children on the unpaved path as she walked toward the bus stop. Other children were stopped at the crossing. Ferraro expected Jimenez-Soto to stop, too; but she continued onto the tracks and was struck by the freight train.

7. Soto’s Opposition to the Motion for Summary Judgment
8.
In her opposition papers Soto did not dispute that Metrolink owned the land, the tracks and the crossing and warning systems. However, citing section 2.5 of the shared-use agreement entitled “Additional Improvements,” which provided that Metrolink “shall permit additional improvements to the Shared Use Facilities reasonably requested by [Union Pacific], which approval shall not be unreasonably withheld,” Soto argued Union Pacific had sufficient control of the premises to impose a duty of care to ameliorate a dangerous condition at the crossing. Soto also cited the testimony of Michelle Martinson, Union Pacific’s person-most-knowledgeable concerning the shared-use facilities. Martinson confirmed Union Pacific had requested at least one improvement on another part of the Saugus line—enlarging tunnel clearances so Union Pacific could run taller freight trains—and Metrolink had approved that request without issue.

In addition, Soto provided a declaration from civil engineer Brad Avrit. Avrit opined the crossing presented a dangerous condition because a pedestrian walking along the unpaved pathway would be able to travel in a straight line from one part of the unpaved road onto the tracks without encountering a barrier. According to Avrit, the most effective barrier to protect unwary pedestrians, including children, from harm would be “a physical barrier like a swing gate or a lever arm designed to block the pedestrian path.” Union Pacific objected to much of Avrit’s testimony that the crossing presented a dangerous condition, arguing it was conclusory, lacked proper foundation and was based on speculation and conjecture. The court sustained those objections.

Jimenez-Soto’s sister stated in her declaration it was Jimenez-Soto’s practice to wear earphones on her way to school and there was no reason to believe Jimenez-Soto did not act consistently with that practice on the day she died. (Soto surmised Jimenez-Soto’s earphones were the likely reason Jimenez-Soto did not hear bells and whistles warning of the train.)

Soto’s counsel also provided a declaration stating he had deposed King only a few days prior to submitting Soto’s opposition papers and, as a consequence, King’s deposition transcript was not yet available. In lieu of a transcript Soto’s counsel averred King had testified he had adopted a practice since the accident of slowing the train down at all at-grade crossings. The court sustained the Union Pacific parties’ objection to this evidence because Soto’s counsel had failed to explain the reasons he could not obtain an expedited transcript to submit the court.

Finally, highlighting the findings of Union Pacific’s own expert, Heikkila, that King had waited until impact to apply the emergency brakes, Soto argued a triable issue of material fact existed as to whether the failure to apply the brakes earlier was reasonable and, if not, whether that unreasonable delay had caused the accident.

9. The Court’s Ruling Granting Summary Judgment
10.
The court granted the Union Pacific parties’ motion for summary judgment. Relying on the rights and duties prescribed in the shared-use agreement, the court ruled Union Pacific did not own, possess or control the crossing and therefore lacked the duty to mitigate or prevent any dangerous condition on the property. The court also ruled Soto could not establish the Union Pacific parties were negligent in their operation of the train. The court entered judgment in favor of the Union Pacific parties. Soto filed a timely notice of appeal.

DISCUSSION

1. Standard of Review
2.
A motion for summary judgment is properly granted only when “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.” (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo and, viewing the evidence in the light most favorable to the nonmoving party (Ennabe v. Manosa (2014) 58 Cal.4th 697, 703), decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)

2. The Court Did Not Err in Granting Summary Judgment on Soto’s Premises Liability Claim

a. Governing law

One who owns, possesses or controls land has a duty to act reasonably to protect others from a dangerous condition on the property. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 (Alcaraz); see Civ. Code, § 1714, subd. (a) [imposing liability for failure to exercise “ordinary care or skill in the management” of property].) The “‘crucial element’” for imposing a duty in such circumstances is control (Alcaraz, at p. 1160 [“‘[w]hoever controls the land is responsible for its safety’”]), the rationale being that whoever has the means to control the property can take steps to prevent the harm. (See Salinas v. Martin (2008) 166 Cal.App.4th 404, 414 [quoting Alcaraz]; Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 892 [landlord liability for dangerous condition on property occupied by tenant depends upon landlord’s degree of control; “‘the landlord must also have the opportunity and the ability to eliminate the dangerous condition being created by the tenant’”]; cf. Public Utilities Com. v. Superior Court (2010) 181 Cal.App.4th 364, 378 (Millan) [“control” in the context of premises liability depends on whether the defendant had the “power to prevent, remedy or guard against the dangerous condition”]; see generally Preston v. Goldman (1986) 42 Cal.3d 108, 119 [“we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land”].)

Conversely, “[a] defendant cannot be held liable for a defective or dangerous condition of property it did not own, possess or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125; accord, Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1241 (Cody F.) [“[t]he law does not impose responsibility where there is no duty because of the absence of a right of control”]; cf. Alcaraz, supra, 14 Cal.4th at p. 1161 [“[D]efendant could not escape liability merely by establishing that . . . a neighbor, rather than the defendant, actually held title to the land containing the dangerous condition. As long as the defendant exercised control over the land, the location of the property line would not affect the defendant’s potential liability”].)

When the evidence concerning control is undisputed, as here, the question of duty remains a legal question we review de novo. (See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142 [“‘[d]uty is a question of law for the court, to be reviewed de novo on appeal’”] Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 [same]; cf. Alcaraz, supra, 14 Cal.4th at p. 1162 & fn. 4 [although duty is a question of law, when evidence concerning control is in conflict, summary judgment is improper].)

b. The court properly ruled Union Pacific had no duty to make the premises safe because it did not own, possess or control the crossing

Soto acknowledges that Union Pacific does not own the land, the Rainbow Glen Drive crossing or any of the other shared-use facilities and, consequently, whether it had a duty of care for purpose of potential premises liability depends on the scope of control conferred by the easement. (See Cody F., supra, 92 Cal.App.4th at p. 1243 [“[t]he nature of the duty owed by the owner of an interest in real property must have a relationship to the degree of control conferred by the scope of the ownership interest itself”].) Relying on paragraph 2.5 of the shared-use agreement, Soto contends Union Pacific’s contractual right to request “additional improvements” to the Saugus line, coupled with Metrolink’s contractual obligation not to unreasonably withhold its approval for such requests, gave Union Pacific sufficient control of the crossing to impose a duty to remedy a dangerous condition. According to Soto’s argument, all Union Pacific had to do to protect the lives of children was request that Metrolink install a pedestrian barrier. Metrolink would have certainly granted such a reasonable request; and, if Metrolink did not, Union Pacific had the additional power to enforce the shared-use agreement in arbitration under the contract’s terms.

Soto’s expansive interpretation of section 2.5 relies upon a flawed assumption. Simply stated, Union Pacific’s contractual right to enforce Metrolink’s obligation to exercise good faith in evaluating Union Pacific’s requests for improvement, without more, is not sufficient control of the premises to impose liability for failing to correct a dangerous condition. (See Millan, supra, 181 Cal.App.4th at p. 379 [PUC’s ability to file a lawsuit to enforce regulatory authority did not give PUC “control” over crossing for purposes of creating a duty when “the uncontradicted evidence established that the PUC lacked the authority to actively maintain or repair the crossing and had only the authority to order others to correct or upgrade”]; cf. Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1087 [affirming finding of no duty; while landowner had ability to request municipality install traffic control device to ameliorate danger on public street, the “ultimate decision [was] up to that [municipal] authority”].)

Cody F., supra, 92 Cal.App.4th 1232, which Soto cites to support her argument, only reinforces our conclusion. In Cody F., a dog attacked a child on a private road that provided access to a subdivision. Each of the homeowners in the subdivision possessed an easement to use the private road for ingress and egress. The victim of the dog attack sued, among others, each of the homeowners, asserting the homeowners’ access easements subjected them to the same duty imposed on any property owner—to act reasonably to keep the property (the private road) safe from dangerous conditions. The appellate court rejected this overbroad conception of duty, emphasizing the degree of control of the easement holder was limited by the rights granted in the easement. Because “[t]he respondents did not have a right of control over Wick’s [the dog owner’s] property, Wick’s dogs, or the road[,]” the court ruled, the easement holders could not be liable for any dangerous condition. (Id. at p. 1241.)

Extrapolating from the Cody F. court’s observation that it was unaware of any case “in which an easement holder was held responsible for an action that had no relationship to the scope of the easement granted” (Cody F., supra, 92 Cal.App.4th at p. 1243), Soto argues all that is required to impose a duty of due care on Union Pacific as an easement holder is to demonstrate the relationship between the harm (train accident) and the purpose of Union Pacific’s easement (running its freight trains), which, she maintains, she unequivocally did. Soto misapprehends the import of the court’s statement, which simply recognized that the easement holders had no control over a dangerous condition unrelated to its easement. Nothing in the court’s opinion eliminated the essential requirement of control over the land containing the dangerous condition, which the Cody F. court confirmed was at the heart of any claim for premises liability. (Cody F., at p. 1241; accord, Alcaraz, supra, 14 Cal.4th at p. 1158; Preston v. Goldman, supra, 42 Cal.3d at p. 119.)

The court in Cody F. also rejected the plaintiffs’ contention, similar to the enforcement argument Soto makes here, that each homeowner’s ability to sue to enforce covenants and restrictions prohibiting other homeowners from housing dangerous pets provided the homeowners with the requisite control necessary to impose a duty of due care in connection with the private road. The Cody F. court explained the right of the easement holders to file a lawsuit to enforce covenants and restrictions was optional, not mandatory. There was no actual duty to exercise those rights. (Cody F., supra, 92 Cal.App.4th at p. 1245; cf. Millan, supra, 181 Cal.App.4th at p. 379 [public agency’s right to sue to enforce its rules was not tantamount to control of land for premises liability purposes].)

Soto’s reliance on Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 (Uccello) is similarly misplaced. There, a visitor injured by the tenant’s dangerous dog sued the landlord for failing to protect others from the tenant’s dangerous pet. The trial court entered a nonsuit in favor of the landlord following the plaintiff’s opening statement. The appellate court reversed, holding a jury could find the landlord knew the dog was vicious and had sufficient control over the premises to prevent the injury. Specifically, because the landlord had the right, under a month-to-month tenancy agreement, to terminate the tenant’s lease upon two weeks’ notice and rent the premises to someone else if the tenant continued to house the dog on the property, the court found “[i]t reasonably may be said that by virtue of the right of termination, [landlord] had sufficient control over the premises so as to bring the case within an exception to the general rule of nonliability.” (Id. at p. 512.) Unlike the landlord in Uccello, Union Pacific had no control over the dangerous condition, and no right to terminate the shared-use agreement. Any right to construct a barrier belonged exclusively to Metrolink, which owned the property and maintained “exclusive control” over the shared-use facilities.

Relying on Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834 (Low), Soto asserts that, at minimum, a jury could find Union Pacific and Metrolink jointly controlled the shared-use facilities. Low involved an action against the county for dangerous condition of public property. Under Government Code section 830, subdivision (c), public property includes “real or personal property owned or controlled by the public entity, but does not include easements . . . located on the property of the public entity but are not owned or controlled by the public entity.” The plaintiff in Low fell on a parking strip while visiting a county hospital. The county owned the property, but had granted a street easement to the city that included the parking strip. On appeal following a liability verdict against both the county and the city, the county argued it had no liability as a matter of law because it had ceded control of the parking strip to the city when it granted the city the easement. The court of appeal affirmed the jury’s verdict against the county, citing evidence that the county had continued to maintain the parking strip despite the easement and hence retained, along with the city, sufficient control of the parking strip to remedy the dangerous condition. (Low, at pp. 833-834.)

Soto insists that, like the city and county in Low, Union Pacific and Metrolink shared maintenance duties for, and thus control of, the crossing. To support this contention, Soto relies on a provision in the shared-use agreement requiring Union Pacific to pay an “agreed annual share” to cover maintenance and annual wear and tear caused by its use of the shared-use facilities, and Martinson’s testimony confirming that Union Pacific paid a maintenance fee in accordance with the terms of the shared-use agreement. Significantly, Soto cites no authority for the proposition that the mere payment of a fee for maintenance is the equivalent of actual maintenance or control and we are not aware of any. A homeowner, for example, may pay a fee to a homeowner’s association for maintenance of common areas, but that payment alone would not make the homeowner liable for injuries due to a dangerous condition in a common area. (Cf. Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 898 [citing landlord’s duty of care over common areas].) In any event, any ambiguity on this point is resolved by the language of the shared-use agreement, which, in addition to requiring Union Pacific to pay a maintenance fee, expressly states that Metrolink retains “exclusive control” over operation, maintenance and repair of the shared-use facilities. And, unlike in Low, Soto presented no evidence of maintenance incompatible with that contract term.

Finally, as part of her joint-control argument, Soto highlights section 7.2 of the shared-use agreement, which allocates liability/damages for personal injury between Union Pacific and Metrolink depending on the circumstances of the injury. For example, section 7.2(c)(v), provides that liability for personal injury to a person at a crossing who is not an invitee shall be borne by Union Pacific if its train was involved in the accident, by Metrolink if its train was involved, and by both Metrolink and Union Pacific equally if both of their trains were involved. Section 7.2 does not assist Soto. The contracting parties’ agreed allocation of liability/damages for personal injury is immaterial to Soto’s contention that Union Pacific controlled the shared-use facilities for purposes of imposing a duty of care.

3. Summary Judgment Was Properly Granted in Union Pacific’s Favor on Soto’s Negligence Claim

Union Pacific unquestionably had a duty of care to operate its trains safely. (Civ. Code, § 1714, subd. (a); see Kesner v. Superior Court, supra, 1 Cal.5th at p. 1142 [“‘California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others’”].) In granting summary judgment the court ruled Union Pacific had carried its initial burden to establish it exercised due care in accordance with industry standards and Soto had failed to raise a triable issue of material fact on that question.

Soto disputes the court’s ruling, insisting Union Pacific failed to carry its initial burden because it submitted no admissible evidence that the train’s speed at the crossing was reasonable and in accordance with the governing speed limitations for that track/crossing. However, Heikkila stated, based on the materials he reviewed and his personal knowledge of the track, the applicable speed limit for that track and that crossing was 45 miles per hour, which was the train’s speed at the time Jimenez-Soto was killed. Soto objected to this aspect of Heikkila’s testimony as hearsay, but the court overruled her objection. Soto does not challenge this evidentiary ruling on appeal. Accordingly, she has forfeited that claim. (Frittelli, Inc. v. 350 North Canon Drive LP (2011) 202 Cal.App.4th 35, 41 [a party that fails to “attack the [trial court’s evidentiary] rulings on appeal . . . forfeit[s] any contentions of error regarding them”]; Lopez v. Baca (2002) 98 Cal.App.4th 1009, 1014-1015; see generally Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“‘absence of cogent legal argument or citation to authority allows this court to treat the contention as waived’”].)

Relying on Peri v. L.A. Junction Ry. (1943) 22 Cal.2d 111, 121 (Peri), Soto also contends triable issues of material fact exist as to whether the train’s speed of 44 or 45 miles per hour was reasonable at an at-grade crossing frequently travelled by children on their way to a school bus. (See ibid. [“‘While it is true that no rate of speed is negligence per se in the absence of a statute or ordinance, it does not follow that a railroad company will be permitted to run its trains under all conditions at any rate of speed it may choose. It must regulate its speed with proper regard for the safety of human life and property, especially when running through towns and cities.’”].)

Peri, however, was decided before Congress passed the Federal Railroad Safety Act of 1970 (FRSA) (49 U.S.C. § 20101 et seq.), designed “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents” (49 U.S.C. § 20101) by making “laws, regulations, and orders related to railroad security . . . nationally uniform to the extent practicable” (49 U.S.C. § 20106(a)(1)). In 2007 Congress clarified the scope of the FRSA and its preemptive effect when it expressly excluded from FRSA’s preemptive reach only those state law claims for damages based on allegations that a party failed to comply with (1) the federal standard of care; (2) its own plan, rule or standard; or (3) a state law regulation or order not incompatible with the FRSA. (49 U.S.C. § 20106(b)(1)(A)-(C); see CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664 [113 S.Ct. 1732, 123 L.Ed.2d 387] (Easterwood) [plaintiff’s state law negligence/wrongful death claim based on excessive speed alone did not satisfy preemption exceptions under 49 U.S.C § 20106(b)(1), and was thus preempted by FRSA]; see generally Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 277-278 [“FRSA preempts covered state law tort claims, in addition to covered statutes and regulations”].) Soto’s excessive speed claim does not involve allegations of Union Pacific’s failure to comply with federal or state laws or regulations or its own internal rules or standards. Accordingly, as in Easterwood, that aspect of Soto’s negligence action is preempted.

Soto asserts that, at the very least, triable issues of material fact exist as to whether King should have applied the brakes earlier, rather than waiting until impact to do so. Assuming, without deciding, that this type of negligence action is not preempted by the FRSA (see Easterwood, supra, 507 U.S. at p. 675, fn. 15 [“this case does not present, and we do not address, the question of FRSA’s pre-emptive effect on” common law claims involving “the duty to slow or stop a train to avoid a specific, individual hazard”]), Union Pacific carried its burden on summary judgment to show it had no reason to apply the brakes to avoid a hazard until it was too late. Heikkila opined in his declaration (1) there was no federal or state regulation requiring the train to slow down at the crossing; (2) there was no reason for King to have slowed the train upon approaching the crossing; and (3) King and Finch exercised due care in the operation of the train before and at the crossing in accordance with railroad industry standards. Heikkila also explained that earlier application of the brakes to avoid Jimenez-Soto would not have made any difference. To have avoided the accident, King would have had to apply the brakes more than 16 seconds before impact, long before Jimenez-Soto stepped onto the tracks. Significantly, Soto supplied no evidence to rebut Heikkila’s declaration. Her speculation that earlier braking was possible and may have lessened the magnitude of Jimenez-Soto’s injuries is not sufficient to defeat summary judgment. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [“[s]peculation . . . is not evidence”]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487 [opposing party cannot controvert moving party’s unequivocal expert declarations with speculation and conjecture].)

DISPOSITION

The judgment is affirmed. The Union Pacific parties are to recover their costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J.

SEGAL, J.

Filed 1/22/20 Jackson v. L.A. Youth Network CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

NICOLE Y. JACKSON,

Plaintiff and Appellant,

v.

LOS ANGELES YOUTH NETWORK,

Defendant and Respondent.

B290168

(Los Angeles County

Super. Ct. No. BC565957)

APPEAL from an order of the Superior Court of Los Angeles County, Holly E. Kendig, Judge. Reversed.

Nicole Y. Jackson, in pro. per., for Plaintiff and Appellant.

Tyson & Mendes, Regina Silva, Kyle Maland and Christopher Wesierski for Defendant and Respondent.

Plaintiff Nicole Y. Jackson appeals from an order denying her motion to set aside an order dismissing her wrongful termination action against her former employer, defendant Los Angeles Youth Network (Youth Network). After Jackson failed to appear at a hearing set for a case management conference (CMC) and Jackson’s motion for leave to amend, the trial court issued an order to show cause re dismissal. Upon Jackson’s failure to appear at the hearing on the order to show cause, the trial court dismissed the action. Almost six months later, Jackson sought discretionary relief from the dismissal under Code of Civil Procedure section 473, subdivision (b), on the basis she lacked actual notice of the hearings and dismissal because she had not received the mailed notice from Youth Network’s attorneys at her home address. Jackson had earlier apprised the court of problems she had receiving mail at her home address and requested leave to receive notice at a post office box, but the court ordered Jackson to use her physical address for service. Jackson learned of the dismissal just six weeks prior to the filing of her motion. The trial court denied Jackson’s motion, finding she had not shown grounds for relief under section 473, subdivision (b), and she had not been diligent in bringing her motion.

On appeal, Jackson contends the trial court abused its discretion in denying her motion. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jackson’s Complaint and the Dismissal
B.
Jackson filed this action as a self-represented litigant on December 8, 2014. The complaint alleged causes of action against Youth Network for wrongful termination in violation of public policy, breach of implied contract, and breach of the implied covenant of good faith and fair dealing. Jackson alleged she worked for Youth Network as a counselor at a youth shelter until Youth Network terminated her employment for “insubordination” because “she refused to conduct an illegal search of [a] youth’s room.” The civil case cover sheet filed with Jackson’s complaint identified Jackson’s address as “P.O. Box 86693.”

After the trial court ordered Jackson to designate a physical address for service, on April 27, 2015 Jackson filed a notice of change of address providing 206 W. 6th Street #506 as her address for service. The next day Jackson failed to appear for the CMC. The court’s minute order states Jackson “called the court this morning and inquired about court call,” and “[c]ourt call was not set up.” The court issued an order to show cause re sanctions and/or dismissal, setting a hearing for June 11, and continued the CMC to the same date. Although Jackson had designated a physical address the prior day, the order noted Jackson “listed a post office box as a return address but needs a physical address.” Jackson appeared at the June 11 hearing, at which the trial court discharged its order to show cause and confirmed Jackson’s physical address. The court continued the CMC to August 12, 2015.

According to the court’s minute order, at the August 12 CMC, “[a]fter much discussion with [Jackson], the court confirmed [her] address is: [¶] 206 W. 6th Street, #560.” The court noted Jackson’s correct apartment number was 560, not 506 as stated on Jackson’s court filings. The court again continued the CMC to January 13, 2016 and directed Youth Network to give notice. In its notice, Youth Network stated, “[Jackson] was further reminded that the law requires that she be served with documents at a physical address.” Following the hearing, Jackson filed a notice of change of address stating that her unit was “#560.”

After further continuances, Jackson failed to appear on May 4, 2016 for the continued CMC. The court issued an order to show cause re dismissal of the entire action for Jackson’s failure to appear and failure to prosecute the action. Jackson appeared at the June 6, 2016 hearing, and the trial court discharged the order to show cause.

On or about July 13, 2016 Jackson reserved a February 2, 2017 hearing on a motion for leave to amend her complaint. On November 22, 2016 the clerk mailed Youth Network’s attorneys a notice continuing the CMC, then set for December 8, 2016, to February 2, 2017. The court directed Youth Network to give notice by mail to Jackson.

Jackson failed to appear at the February 2, 2017 CMC and hearing on her motion to amend. The court again issued an order to show cause re sanctions and/or dismissal of the case for Jackson’s failure to appear and set a hearing for March 15, 2017. The court stated, “Failure of [Jackson] to appear on the above date will be deemed by the court to be [Jackson’s] consent to dismiss the case.” The court ordered Youth Network to give notice, which it did by mail on February 17.

Jackson failed to appear at the March 15, 2017 hearing. In a signed minute order, the trial court dismissed Jackson’s action for “failure to appear this date; failure to appear on February 2, 2017 and failure to follow court orders.” On March 31, 2017 Youth Network mailed Jackson notice of the court’s order of dismissal.

C. Jackson’s Motion To Set Aside Dismissal
D.
On September 13, 2017 Jackson filed a motion for discretionary relief from dismissal under section 473, subdivision (b). Jackson attached a declaration in which she stated she had not received “any correspondences from [Youth Network] or the court regarding the December 8, 2016 continuance, the February 2, 2017 hearing, or the subsequent hearing on March 15, 2017.” Jackson stated she appeared on December 8, 2016 for the CMC and “was told by the clerk that the matter had been taken off the calendar.” Because of illness Jackson could not attend the February 2, 2017 hearing on her motion for leave to amend. On February 1 Jackson cancelled her hearing reservation on the superior court’s online reservation system and “did not believe the case would be called” the next day. Jackson then rescheduled her hearing for August 25, 2017. Jackson attached e mails sent to her by the reservation system confirming the cancellation of the February 2 hearing reservation and the rescheduling of the hearing for August 25, 2017.

Jackson averred she “previously received all mail at a [P.O.] Box due to delivery concerns. [Youth Network] complained to the court about the use of a [P.O.] Box. I informed the court that I was unable to provide a physical address due to, issues with missing/undelivered/timely mail receipt, and confidentiality issues with giving out a physical address in addition to logistical difficulties with mail pickup to a physical address and that a [P.O.] Box was being used in all other pending cases in Los Angeles County.” Jackson stated the court had ordered her to use a physical mailing address instead of the post office box address she preferred. Jackson declared, “This has resulted in lost, and/or missing mail and an untimely delay in receiving mail that has severely prejudiced my ability to fully exercise due process of law by being . . . made aware of the case requirements, scheduling and deadlines.” Jackson attached e mail correspondence from July 2015 between her and Youth Network’s attorney Regina Silva, in which Silva stated, “The physical address was required by the [c]ourt, not requested. . . . We will not be serving you at a [P.O.] Box. The Judge made it clear to you at the first appearance that by law, you were required to provide a physical address to us and the [c]ourt.”

Jackson declared that because she did not receive any correspondence from Youth Network regarding the February 2 or March 15 hearings, she had no actual notice of the order of dismissal until August 1, 2017 when she “review[ed] the court file.” The trial court docket shows that on August 1 Jackson filed discovery requests to Youth Network, including requests for admission and for production of documents.

In her motion, Jackson argued Youth Network failed to give her notice of the continuance of the CMC to February 2, 2017, and she “learned of the dismissal on August 1, 2107 and . . . request[ed] relief as expeditiously as possible.” Jackson also asserted the use of a post office box was not prohibited by law.

Youth Network opposed the motion, arguing Jackson failed to show surprise under section 473, subdivision (b), because she was served at the physical address for service she had filed with the court. Youth Network also argued Jackson’s motion was not brought within a reasonable time under section 473, subdivision (b), because Jackson waited almost six months after the dismissal to contact the court or Youth Network. Youth Network attached a copy of the notice of change of address filed by Jackson on August 12, 2015. Youth Network also attached a copy of the court’s notice of the continuance of the December 8, 2016 CMC to February 2, 2017, but it did not submit any evidence it gave Jackson notice of the continuance by mail, as directed by the trial court. Youth Network provided proofs of service by mail to Jackson’s physical address of the court’s August 12, 2015, June 6, 2016, February 2, 2017, and March 15, 2017 rulings. Jackson did not file a reply.

After a hearing on April 3, 2018, the trial court denied Jackson’s motion. In its minute order, the court recited Jackson’s failures to appear on May 4, 2016 for the CMC (for which an order to show cause was issued, then discharged); on February 2, 2017 for the continued CMC and Jackson’s motion to amend; and on March 15, 2017 for the order to show case re sanctions or dismissal. The court did not consider Jackson’s cancellation of the February 2 hearing reservation the prior day. The court noted Jackson’s assertion that “use [of] the physical address, as opposed to a [P.O.] Box, caused mail to be lost or for her to miss mail,” but stated Jackson provided the physical address for service to the court in April 2015 and confirmed the address again in August 2015. The court reasoned, “[Jackson] offers no facts in her declaration to support this conclusion and to explain why she did not receive the notice at the address she identified and that the [c]ourt confirmed with her as her address. Further, [Jackson] does not offer any facts to show that there are grounds for relief under . . . section 473(b), i.e., that the dismissal on March 15, 2017 was the result of her own mistake, surprise, inadvertence, or excusable neglect.” The court also found, “There are no facts to explain [Jackson’s] delay in ascertaining the dismissal or in waiting to file the pending motion. As a result, [Jackson] has not provided a satisfactory explanation for the 5 month, 29 day delay in seeking relief from the dismissal.”

Jackson timely appealed.

DISCUSSION

A. Standard of Review
B.
“‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of [an] abuse’” of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; accord, Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929 (Austin).) Under this standard, “we may reverse only if we conclude the trial court’s decision is ‘“so irrational or arbitrary that no reasonable person could agree with it.”’” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249 [affirming grant of equitable relief from default judgment]; accord, Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) “That a different decision could have been reached is not sufficient because we cannot substitute our discretion for that of the trial court. The trial court’s ruling must be beyond the bounds of reason for us to reverse it.” (Mechling, at p. 1249; accord, Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)

However, there is a public policy favoring a trial on the merits. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 978, 985 [granting equitable relief from default judgment due to defendants’ failure to pay entirety of filing fee for answer based on incorrect information from clerk’s office]; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694, 701-703 [trial court abused its discretion in denying motion under § 473, subd. (b), for relief from default judgment entered after defendant’s insurer failed to file answer].) Moreover, “[t]he general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; accord, Austin, supra, 244 Cal.App.4th at p. 928.) “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’” (Rappleyea, at p. 980; accord, McClain v. Kissler (2019) 39 Cal.App.5th 399, 413; Fasuyi, at p. 696 [“[T]he remedial relief offered by section 473 is ‘highly favored and is liberally applied.’”].)

C. Applicable Law
D.
Section 473, subdivision (b), provides in part, “The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” To qualify for discretionary relief under section 473, subdivision (b), “the party seeking relief must show (1) a proper ground for relief, and (2) ‘the party has raised that ground in a procedurally proper manner, within any applicable time limits.’” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229 (Henderson); accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.)

As the Court of Appeal in Henderson explained, “‘“[T]he term ‘surprise,’ as used in section 473, refers to ‘“some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”’ [Citation.]” Finally, as for inadvertence or neglect, “[t]o warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.”’” (Henderson, supra, 187 Cal.App.4th at p. 230; accord, Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) The trial court has discretion to grant relief under section 473, subdivision (b), “based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred.” (Austin, supra, 244 Cal.App.4th at p. 928.)

“[R]elief is not warranted unless the moving party demonstrates diligence in seeking it.” (Huh v. Wang, supra, 158 Cal.App.4th at pp. 1420-1421 [affirming denial of discretionary relief under § 473, subd. (b), where appellant waited more than three months after notice of entry of judgment to file his motion]; accord, Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [“Given the absence of evidence explaining the seven-week delay in seeking to set aside the dismissal, the diligence requirement was not satisfied.”].) “A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 (Minick); accord, Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1184 [“unexplained delays of anything approaching three months after full knowledge of the entry of the default” are untimely as a matter of law].) Whether a party has acted diligently is a question of fact for the trial court, which depends on all of the circumstances of the particular case. (Minick, at p. 33; Younessi, at p. 1145.)

E. The Trial Court Abused Its Discretion in Denying Jackson’s Motion for Relief from the Dismissal
F.
1. Jackson provided an adequate excuse for her failures to appear
2.
The trial court based its dismissal on Jackson’s failures to appear at the May 4, 2016 and February 2 and March 15, 2017 hearings. As discussed, Jackson called the court the day of the May 4, 2016 hearing to request she be allowed to appear by court call, but a court call appearance was not set up, and Jackson failed to appear. Although the record does not reflect why Jackson was unable to appear in person for the May 4, 2016 hearing (or why she could not appear by court call), Jackson’s contacting the court and then appearing in person at the hearing on June 11, 2016, leading the court to discharge the order to show cause re sanctions and/or dismissal, shows some diligence by Jackson.

Jackson argues she had no actual notice of the February 2 and March 15 hearings because Youth Network did not mail her notice of the continuance of the CMC to February 2 and she did not receive actual notice of the March 15 hearing or the dismissal. Youth Network does not dispute that it failed to provide Jackson notice of the continuance of the CMC to February 2, instead arguing Jackson failed to appear for the hearing on her motion for leave to amend set for the same day and the court properly found Jackson did not provide an adequate excuse for not appearing on her own motion. Jackson responds she cancelled the hearing on her motion to amend through the court’s online reservation due to sickness and believed the matter would be taken off calendar.

We agree with Jackson that her illness on the day of the hearing provided a basis for excusing her failure to appear. (Minick, supra, 3 Cal.App.5th at p. 32 [“Without requiring the declaration of a physician, a number of California decisions have upheld orders granting discretionary relief under section 473, subdivision (b), because of counsel’s illness.”]; Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 280 [“Illness of counsel which actually disables him from timely compliance with the statutory rules of procedure constitutes excusable neglect . . . .”]; see Smith v. Smith (1904) 145 Cal. 615, 618 [self-represented litigant’s failure to appear at trial due to sickness was “providential accident . . . for which the code provides a new trial may be granted”].) Moreover, Jackson cancelled the reservation on her motion and “did not believe the case would be called.”

Although Jackson also failed to appear at the February 2, 2017 CMC, she had appeared for the CMC on December 8, 2016, as previously scheduled, when a clerk informed her the conference had been taken off calendar. Youth Network asserts the court served notice on all parties of the continuance, but the court’s November 22, 2016 notice continuing the CMC to February 2 expressly directed Youth Network “to give notice by mail . . . to all parties and to file proof of service of such notice.” Youth Network failed to serve Jackson with notice. Jackson therefore did not learn of the continuance, and her failure to appear at the February 2, 2017 CMC was due to “‘“surprise” . . . “‘. . . which ordinary prudence could not have guarded against.’”’” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1206.)

Jackson’s failure to appear on February 2 was the catalyst for the court setting the order to show cause hearing on March 15. Although Youth Network mailed Jackson notice of the March 15 hearing, Jackson averred she did not receive the notice due to mail delivery problems at her physical address. After the court dismissed Jackson’s case for her failure to appear at the March 15 hearing, Youth Network mailed notice to Jackson, but Jackson again did not receive the notice. Youth Network contends Jackson’s nonreceipt of the notices has no bearing on the availability of relief under section 473, subdivision (b), arguing the proper mailing of a letter “creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed,” and that “[d]ue process ‘does not require actual receipt . . . .’” While Youth Network is correct there is a presumption that a properly mailed letter is received, this does not negate the availability of relief under section 473, subdivision (b), where a litigant has not received actual notice by mail despite taking reasonable steps to receive his or her mail.

Youth Network’s argument Jackson did not take reasonable steps to provide an adequate mailing address to the court rings hollow. Jackson informed the court she had “issues with missing/undelivered/timely mail receipt” at her physical address and requested to use a post office box for mailings. The court denied that request and ordered Jackson to accept service at her physical address. Contrary to the trial court’s conclusion Jackson “offer[ed] no facts in her declaration . . . to explain why she did not receive the notice at the address she identified,” Jackson explained in her declaration there was a history of mail delivery problems at her physical address, of which she had previously apprised the court and opposing counsel. Although it may be Jackson could have done more to investigate the mail delivery problem at her home address, her conduct was reasonable in light of the fact she had received mailed notices without issue from April 2015 until February 2017. Under these circumstances, Jackson’s failure to receive notice of the February 2, 2017 hearing and the March 15, 2017 hearing on the order to show cause did not involve the type of “‘“‘“negligence of [her] own, which ordinary prudence could not have guarded against,”’”’” and any neglect was “‘“such as might have been the act of a reasonably prudent person under the same circumstances.”’” (Henderson, supra, 187 Cal.App.4th at p. 230.)

3. Jackson moved for relief under section 473, subdivision (b), within a reasonable time from learning of the dismissal
4.
As discussed, to obtain relief under section 473, subdivision (b), the motion for relief must be made “within a reasonable time,” not to exceed six months after the dismissal, judgment, or order. “[T]he critical triggering event for seeking relief [is] notice of . . . entry . . . .” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1421.) Here, Youth Network mailed Jackson notice of the order of dismissal on March 31, 2017. It is undisputed Jackson did not move for relief until September 13, 2017, about five and a half months later.

Jackson contends the trial court abused its discretion by failing to consider her lack of actual notice of the dismissal before August 1, and her reasonable need for six weeks to prepare her motion for relief from dismissal. We agree Jackson showed reasonable diligence once she discovered the dismissal.

The trial court found Jackson had provided “no facts to explain [her] delay in ascertaining the dismissal or in waiting to file the [section 473] motion.” This finding ignores Jackson’s explanation that she previously had a problem receiving her mail at her physical address, which Jackson had brought to the court’s attention. There is no evidence Jackson became aware of the dismissal before August 1, 2017, when she reviewed the court file to facilitate service of her discovery requests and to prepare for the hearing on her motion for leave to amend. Jackson had not received any documents from Youth Network regarding the dismissal, and she believed the next scheduled hearing was on August 25, the date Jackson had scheduled online for her motion for leave to amend. Although Jackson could have exercised greater diligence in checking on the progress of her case, her failure to do so before August 1, 2017 was not so unreasonable as to warrant a finding of inexcusable neglect. As Jackson asserted in the trial court, upon discovering the dismissal, she “request[ed] relief as expeditiously as possible.” Jackson contends on appeal she had to discover when and why the court ordered dismissal, review the court file, and draft and file her motion and supporting documents, all without the assistance of counsel. In moving for relief within six weeks of learning of the dismissal, Jackson’s conduct was well within the range considered timely. (See Freeman v. Goldberg (1961) 55 Cal.2d 622, 625 [finding timely motion to vacate made within six weeks after plaintiff learned of the order from which relief was taken]; Minick, supra, 3 Cal.App.5th at p. 34 [noting courts have found § 473 motions filed within seven to 10 weeks timely]; Outdoor Imports, Inc. v. Stanoff (1970) 7 Cal.App.3d 518, 524 [nine-week delay in filing motion after discovery of default not unreasonable].)

Midwest Television, Inc. v. Scott, Lancaster, Mills & Atha, Inc. (1988) 205 Cal.App.3d 442, relied on by Youth Network, is inapposite. There, the Court of Appeal affirmed the trial court’s denial of the defendant’s motion under section 473, subdivision (b), for relief from notice of deemed admissions because the motion was untimely filed “well beyond the [former] statutory 30-day period.” (Midwest Television, at p. 452.) Further, although the defendant’s attorney asserted the plaintiff had mailed the notice of deemed admissions to the wrong address, the court found the notice was mailed to the proper address “as shown on the last pleading received by plaintiffs,” in accordance with section 1013. (Midwest Television, at p. 453.) Unlike the facts here, it was the fault of the defendant’s lawyer in failing to update his mailing address that caused the late receipt of the notice.

Moreover, “‘when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.’” (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 981-982.) Under the circumstances here, the trial court abused its discretion in failing to grant Jackson relief from dismissal given that Jackson provided facts sufficient to show her failures to appear were due to surprise or excusable neglect and she was reasonably diligent in moving for relief once she discovered the dismissal.

DISPOSITION

The order is reversed. Jackson is to recover her costs on appeal.

FEUER, J.

We concur:

ZELON, Acting P. J.

SEGAL, J.

Filed 1/22/20 P. v. Sanchez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAEL SANCHEZ,

Defendant and Appellant.

B291736

(Los Angeles County

Super. Ct. No. BA446666)

APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas W. Sortino, Judge. Affirmed as modified.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

——————————

A jury convicted former police officer Israel Sanchez of various crimes arising out of his sexual assaults of women while on duty. He contends that his convictions must be reversed because the trial court failed to orally instruct the jury on a charged crime and omitted an element of another. He also contends that the trial court should have stayed certain sentences. We reject his claims of instructional error but agree that sentencing error occurred.

BACKGROUND

I. The sexual assaults

Sanchez was a patrol officer for the Monterey Park Police Department. The department’s patrol cars are equipped with video cameras and audio recording devices. Officers can manually activate and deactivate the audio recording device by pressing a button on the utility belt they wear. Officers also can manually control the video.

In 2014, Sanchez worked at night, alone. During that time, he sexually assaulted three women: Jessica S., Jessica R., and Bryanna S.

A. Jessica S.

On the early morning of July 28, 2014, Jessica S. drove to her friend’s house in Monterey Park. She was walking to the house from her car when Sanchez stopped her. After searching her purse for drugs and not finding any, he put her in his patrol car. He suggested that she was hiding drugs in her underwear, so he had her search herself by running her hands over her bra and underwear. Sanchez put his fingers inside her vagina, he said to see if she had anything illegal. He told Jessica S. that if she did not listen to what he told her to do she would be arrested. He let her return to her car, but, as she sat, he twice reached through the open window and under her shirt to rub her breasts. He told her that if she said anything he would “come back.”

During the encounter, the video recorder was repeatedly turned off and on but the video shows Sanchez putting his arm through the car window and moving his arm up and down.

B. Jessica R.

On August 7, 2014, Sanchez pulled over Jessica R., who was driving her car. She recognized Sanchez because he had stopped her a year before for driving under the influence. After that prior stop, he asked her to have coffee with him, but she did not go. During the current stop, Jessica R. told Sanchez she had done methamphetamine weeks earlier and was driving with a suspended license. Sanchez had her do a “bra shake” to see if she had drugs.

Sanchez moved Jessica R. to the patrol car. A second officer arrived to assess whether Jessica R. was under the influence of a drug. After examining her, the second officer left. Alone again with Jessica R., Sanchez turned off the video recorder and told her to lift her shirt. When she did as he demanded, he commented, “nice nipples” and flicked her nipple with his hand. At his insistence she was hiding something in her underwear, she pulled down her pants. He told her to move her underwear so that he could see her vagina. Sanchez told Jessica R. that if she did what he wanted then he would let her go. He twice touched her vagina, “playing with the lips.” He told her, “nice hair.” Jessica R. was afraid Sanchez would kill her.

During these events, Jessica R. saw Sanchez touch his belt, which controlled the audio device. Accordingly, the video of the incident contained multiple gaps of one to six minutes long.

C. Bryanna S.

On the night of August 15, 2014, Bryanna S. and her boyfriend were having sex in the back of her car. Sanchez shone a light into the car, drew his gun, made them get out of the car, and put Bryanna S. in the patrol car. Sanchez told Bryanna S. and her boyfriend that they could be arrested for indecent exposure, requiring them to register as sex offenders. While alone with Bryanna S., Sanchez told her she had a beautiful body. Saying he wanted to make sure Bryanna S. did not have drugs, he asked her to lift her shirt, commenting “nice” when she did so. When he said he wanted to make sure she wasn’t hiding anything in her underwear, she moved her underwear so that he could see her genital area.

The video recording of the incident had breaks during Sanchez’s interactions with Bryanna S. but not with her boyfriend.

II. Verdict and sentence

The jury found Sanchez guilty of three counts of false imprisonment by violence, menace, fraud or deceit (Pen. Code, § 236; counts 1 [Bryanna S.], 2 [Jessica R.], 3 [Jessica S.]), soliciting a bribe (§ 68; count 4), five counts of assault by a public officer (§ 149; counts 5 [Jessica R.], 6 [Jessica S.], 11 [Jessica R.], 12 [Jessica R.], 13 [Jessica S.]), and five counts of sexual battery by restraint (§ 243.4, subd. (a); counts 7 [Jessica R.], 8 [Jessica R.], 9 [Jessica S.], 10 [Jessica S.], 14 [Jessica R.]).

On June 5, 2018, the trial court sentenced Sanchez to three years on count 7; one year on each of counts 8, 9, 10, and 14; and eight months on count 1. The trial court imposed concurrent sentences on counts 2, 3, and 4 and imposed but stayed sentences under section 654 on counts 5, 6, 11, 12, and 13. Sanchez’s total prison term therefore was seven years eight months.

DISCUSSION

I. Failure to instruct the jury

When orally instructing the jury, the trial court failed to instruct on the charged offense of assault by a public official and its lesser included offense of simple or misdemeanor assault, and the fraud or deceit elements of felony false imprisonment. This was error. The issue therefore is whether the error is reversible per se and, if not, whether the errors were harmless.

A. The error is not reversible per se

A criminal defendant has the right to a jury determination that the defendant is guilty of every element of the crimes charged beyond a reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819, 824 (Merritt).) Hence, a trial court must instruct the jury on the essential elements of the charged offenses. (Ibid.) And, given that the class of structural errors requiring reversal per se is limited, only an instructional error or omission that amounts to a total deprivation of a jury trial is structural error, such as where the jury is given a defective reasonable doubt instruction. (Id. at pp. 822, 826, 829–830.) Otherwise, a failure to instruct on elements of a crime does not require reversal if it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. (Id. at pp. 822, 831.)

Thus, even the extreme case of a trial court’s complete failure to instruct—orally and in writing—on a charged offense is amenable to harmless error analysis. (Merritt, supra, 2 Cal.5th at p. 821.) In Merritt, the trial court failed to instruct the jury on the elements of the charged offense of robbery. Although the more elements the instructions omit the more likely the error is prejudicial, Merritt refused to hold categorically that such error can never be harmless. Rather, because the jury was otherwise instructed on the mental state required for robbery, the need to find the defendant’s identity as the perpetrator, and the elements of an accompanying firearm-use allegation, the error was amenable to review under the harmless beyond a reasonable doubt standard. (Ibid.)

Further, the less extreme case where a trial court misreads instructions also is subject to harmless error analysis, when the written instructions given to the jury are correct. (People v. Osband (1996) 13 Cal.4th 622, 717 [written instructions govern conflict with oral instructions]; People v. Garceau (1993) 6 Cal.4th 140, 189–190 [incomplete oral instruction harmless where written instruction correct].)

Applying this law, we cannot agree that the trial court’s failure to instruct the jury orally on the charged offense of assault by a public officer and on simple assault was reversible per se, as the error did not constitute a total deprivation of Sanchez’s jury trial right. The error is amenable to harmless error analysis under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. In so finding, we note that the trial court in Merritt, supra, 2 Cal.5th 819 did not instruct on the charged offense orally or in writing, yet Merritt found that the error was not structural. In contrast to Merritt, the jury here received the correct written instructions, which fact strengthens our conclusion that the error is not structural. At the outset of orally instructing the jury, the trial court told the jury it would receive a written copy of instructions. The clerk’s transcript on appeal contains a file-stamped copy of the complete instructions. The jury therefore was not wholly without instruction. The jury received the instructions in writing, which gives rise to a presumption it was guided by them. (See People v. Mills (2010) 48 Cal.4th 158; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)

Sanchez, however, argues that the presumption is inapplicable. First, he cites People v. Murillo (1996) 47 Cal.App.4th 1104, 1107, where the trial court failed to orally instruct the jury on CALJIC No. 2.21.2, witness willfully false, but did include it in the written packet sent to the jury. Murillo at page 1107 found it was not possible to determine if the jury read its written copy of the instruction and presumed it had not. But, because the jury was given other instructions covering essentially the same issue, Murillo found the error harmless. Murillo is unpersuasive, as it does not address the presumption juries are guided by the written instructions.

Second, Sanchez argues that the jury here did not get the correct written instructions. To support this argument, he refers to a discussion about instructions during which the trial court asked if counsel had reviewed the “final packet.” From this, as well as the basic fact the trial court did not read the omitted instructions, Sanchez suggests that the trial court had two written packets of instructions: an incomplete packet it read to the jury, and a complete packet that is in the clerk’s transcript. From this, Sanchez further speculates that the trial court gave the jury the incomplete written packet, although he admits it is at least equally likely the trial court gave the jury the complete packet of written instructions. We agree it is possible the trial court had two sets of instructions, as instructing a jury is a collaborative process that involves editing, removing, and adding instructions. Even so, we disagree that the mere existence of more than one set of instructions is sufficient to rebut the presumption the jury received the written instructions as contained in the clerk’s transcript. True, there can never be absolute assurance that the written instructions sent into a jury room are identical to those orally read. But, this is why there are burdens on appeal. That is, we trust absent an affirmative showing there is reason to distrust. (See People v. Davis (1996) 50 Cal.App.4th 168, 172 [appellant’s burden to show error on face of record].) The record here provides no reason to distrust that the clerk copied and gave the correct packet of written instructions to the jury. The record contains a correct and complete written copy of the instructions, counsel in closing argument read from the correct instructions, and neither counsel objected to the written instructions but rather approved the final packet. This record therefore supports the presumption that the jury had the correct and complete written instructions as reflected in the clerk’s transcript.

Having concluded that all instructional errors at issue are subject to harmless error analysis, we consider each omitted instruction in turn.

B. Felony assault by a public officer

Although the trial court did not orally instruct the jury on the charged offense of assault by a public officer, the error was not prejudicial because (1) the jury received the correct written instruction, (2) the prosecutor accurately described the elements of the offense in closing argument, and (3) the jury necessarily found the omitted elements of the charged offense true.

First, the trial court gave the jury this written instruction on felony assault by a public officer:

“The defendant is charged in Counts 5, 6, 11, 12, and 13 with assault by a public officer. Counts 5, 11, and 12 are based on the testimony of Jessica R. Counts 6 and 13 are based on the testimony of Jessica S. These charges are based on the same alleged events as those alleged in support of the sexual battery by restraint offenses alleged in Counts 7, 8, 9, 10, and 14.

“Every person who, under color of authority, assaults any person, is guilty of a violation of . . . section 149. To prove this crime, the People must prove that:

“1. The defendant assaulted another person;

“2. At the time of the assault, the defendant was a public officer; and

“3. At the time he committed the assault, the defendant was acting under color of authority without lawful necessity.

“ ‘Assault’ is defined in another instruction which I shall give later.

“ ‘Public officer’ includes any peace officer, as defined in an earlier instruction.

“ ‘Color of authority’ means performing or purporting to perform any duty of a public officer, or performing any act which is made possible only because he is clothed with authority of law or the pretense of authority of law.

“ ‘Lawful necessity’ consists of (1) reasonable cause to believe that the person to be arrested or detained has committed any public offense and (2) use of reasonable force to effect the arrest or detention.

“ ‘Reasonable cause to arrest or detain’ is defined in another instruction that I have already given to you.

“ ‘Without legal necessity’ means either (1) the non-existence of legal cause to arrest or detain or (2) the use of unreasonable or excessive force to effect an arrest or detention. Either element alone is sufficient to prove the absence of legal necessity.

“ ‘Unreasonable force’ is the use of more force than is objectively reasonable to accomplish a lawful purpose. This is an objective standard, to be measured not by the subjective opinion of the defendant, but by the objective standard of a reasonable police officer in the same situation, with the same training and experience, and aware of the same facts and circumstances.

“The People bear the burden of proving the defendant’s conduct was without lawful necessity. If the People have not done so, you must find the defendant not guilty of the crime of assault by a public officer.”

Sanchez raises no issue as to the legal adequacy of this written instruction. Therefore, the jury received adequate instruction on the charged offense.

Second, and in addition to receiving the above written instruction, the prosecutor restated the elements of the crime in her closing argument: defendant assaulted another person, at the time of the assault he was a peace officer, and when he committed the assault he was acting under color of authority “without lawfulness.”

Finally, omission of an instruction is harmless beyond a reasonable doubt if the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (Merritt, supra, 2 Cal.5th at pp. 831–832; People v. Wright (2006) 40 Cal.4th 81, 98.) Based on other instructions given orally and in writing to the jury and on the verdicts, the jury necessarily found true the elements of assault by a public officer. Thus, as to the first element of that offense (Sanchez assaulted another person), the jury found him guilty of sexual restraint by battery of Jessica S. and Jessica R. Simple assault is a lesser included offense of sexual battery by restraint. (People v. Carapeli (1988) 201 Cal.App.3d 589, 595.) Therefore, the jury necessarily resolved this element against Sanchez.

As to the second element (Sanchez was a public officer), the jury convicted Sanchez of false imprisonment and of soliciting a bribe. In finding him guilty of those offenses, the jury found that he was a peace officer (which is the same as a public officer) and an executive officer. The trial court gave CALJIC No. 1.26, which defined peace officer to include “[a]ny chief of police, employed in that capacity, of a city, or any police officer, employed in that capacity and appointed by the chief of police or the chief executive of the agency, of a city.” (Italics added.) Further, per CALCRIM No. 2670, the jury was instructed that to find Sanchez guilty of false imprisonment the People had to prove Sanchez was “not lawfully performing his duties as a peace officer at the time of the alleged crimes.” CALCRIM No. 2670 also provided that a “peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone.” In addition, the jury was informed per CALCRIM No. 2603 regarding the bribery count that Sanchez had to have been acting as an executive officer when he took the bribe. The instruction explained that an “executive officer is a government official who may use his or her own discretion in performing his or her job duties. A Monterey Park Police Officer is an executive officer.” The jury thus having found Sanchez guilty of soliciting a bribe and of false imprisonment necessarily found that Sanchez was a peace officer.

Finally, the third element of assault by a public officer is that when Sanchez committed the assault, he acted under color of authority, without lawful necessity. Similar to the second element of assault by a public officer, the jury necessarily found that Sanchez acted under color of authority when he solicited a bribe and falsely imprisoned the victims. Lawful necessity consists of reasonable cause to believe that the person to be arrested or detained committed a public offense and use of reasonable force to affect the arrest or detention. The jury necessarily found that Sanchez acted without lawful necessity because it found, in connection with the false imprisonment counts, that a “peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone.” Therefore, by its verdicts on the false imprisonment counts, the jury resolved the third element of assault by a public officer against Sanchez.

C. Simple assault

Sanchez similarly contends that the trial court failed to instruct orally on simple assault (CALCRIM No. 915) as a lesser included offense of assault by a public officer. However, as with the other omitted oral instructions, the jury received written instruction on simple assault. Simple assault was not given as a lesser included offense. Rather, the purpose of CALCRIM No. 915 was to define assault as used in the felony assault by a public officer instruction.

Even if it is Sanchez’s argument that simple assault should have expressly been given as a lesser included offense, then instruction on a lesser included offense is required only when there is evidence the defendant is guilty of the lesser offense but not of the greater. (See People v. Banks (2014) 59 Cal.4th 1113, 1159–1160.) The record contains insufficient evidence Sanchez merely committed a simple assault as to Jessica S. and Jessica R. Sanchez testified in his defense and denied touching them. The activity he admitted having committed—asking Jessica S. to lift her shirt so he could verify she did not have a weapon in her waistband and having Jessica R. do a bra shake to find hidden drugs—were not assaults. If Sanchez was guilty of any crime, it was of assault by a public officer.

D. Felony false imprisonment

Unlike assault by a public officer, the trial court did not wholly fail to instruct the jury orally on felony false imprisonment. Instead, as to that charge, the trial court correctly told the jury that to prove Sanchez committed the crime the People had to prove he intentionally and unlawfully restrained, confined, or detained someone by violence or menace. However, the trial court omitted three words from the end of that sentence: fraud or deceit.

A similar error occurred in People v. Mills, supra, 48 Cal.4th 158. When instructing the jury, the trial court misspoke three times. Its most significant error was inserting “ ‘not’ ” into the instruction, which had the effect of giving the jury the opposite of the correct definition of the specific intent required for the crime. (Id. at p. 200.) Noting that the risk of discrepancies between the orally delivered and written instructions exists in every trial, Mills relied on the presumption that, to the extent there is a discrepancy between the oral and written instructions, the written instructions control. (Id. at p. 201.) As the jury received the correct written instructions, the errors were harmless. (Ibid.)

The jury here also received the correct written instruction on felony false imprisonment, which contained the three orally omitted words. Hence, the jury was correctly instructed that to find Sanchez guilty of felony false imprisonment, he had to have intentionally and unlawfully (restrained, confined, or detained) someone by violence, menace, fraud or deceit. In addition to receiving that correct written instruction, the jury received other written instruction referring to the fraud or deceit component of the offense. Thus, the jury was instructed that false imprisonment by fraud or deceit requires a specific mental state (CALCRIM No. 252); that evidence of Sanchez’s character regarding his interactions with women could create a reasonable doubt he committed false imprisonment by violence, menace, fraud or deceit (CALCRIM No. 350); that if the People failed to meet its burden of proving that Sanchez was not lawfully performing his duties as a peace officer at the time of the crimes, the jury had to acquit him of false imprisonment by violence, menace, fraud or deceit (CALCRIM No. 2670); and that simple false imprisonment was a lesser crime of false imprisonment by violence, menace, fraud or deceit (CALCRIM No. 3517).

Moreover, the People focused on the fraud or deceit aspect of false imprisonment in her argument. The People first read almost the entire instruction to the jury, including the definition of fraud or deceit. After arguing that Sanchez used menace to detain the victims, the People told the jury she wanted to focus on fraud and deceit. The People then discussed how Sanchez defrauded and deceived each victim. As to Bryanna S., the detention began lawfully but it turned unlawful when he told Bryanna S.’s boyfriend he was free to go but put Bryanna S. in the patrol car. Sanchez further deceived her by saying she could be guilty of indecent exposure. As to Jessica R., Sanchez failed to tell her he found nothing on her person and instead said he needed to continue his investigation as a pretense to assault her. As to Jessica S., although she had committed no crime, he told her he was giving her a break by not taking her to jail.

Finally, the jury could have also found the first element of false imprisonment true based on a theory that Sanchez restrained the victims by violence or menace. The trial court instructed on those elements orally and in writing. As to menace, the instructions defined it as a verbal or physical threat of harm, including using a deadly weapon. Further, the threat of harm may be express or implied. As to Jessica S., Sanchez put his fingers inside her vagina and then rubbed her breasts. As to Jessica R., Sanchez flicked her nipples, forced her to pull down her pants, and played with her vagina. And, Sanchez made Bryanna S. pull aside her underwear so that he could see her vagina. Such actions can be considered menacing, especially when done by an armed police officer. All three victims testified that Sanchez scared them. Therefore, even if we assumed that the jury received no instruction on fraud or deceit as a theory of false imprisonment, the jury otherwise found him guilty of that offense based on at least a theory of menace, which was supported by substantial evidence.

In any event, the difference between felony and misdemeanor false imprisonment is that the latter does not require the restraint to be by violence, menace, fraud or deceit. As we next explain, the jury rejected the lesser offense, on which it was adequately instructed.

E. Misdemeanor false imprisonment

When orally instructing the jury on misdemeanor false imprisonment, the trial court’s only error was it said misdemeanor false imprisonment is a “lesser crime to the charged crime of false imprisonment by violence or menace,” instead of saying it was a lesser crime to the charged crime of false imprisonment by violence or menace, fraud or deceit. The jury otherwise received complete instruction on the lesser offense of misdemeanor false imprisonment. We fail to see how the trial court’s omission of the words fraud or deceit—which were relevant only to the greater offense—precluded the jury from considering misdemeanor false imprisonment as a lesser offense.

II. Cumulative error

Sanchez contends the cumulative error doctrine applies to his asserted claims of instructional error. Under that doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (People v. Sanchez (1995) 12 Cal.4th 1, 60, 63–64.) As we have found that the errors were harmless, we conclude that the cumulative nature of the instructional errors was similarly not prejudicial.

III. Section 654

The jury found Sanchez guilty of sexual battery by restraint of Jessica R. (counts 7, 8, 14) and of falsely imprisoning her (count 2). The jury similarly found him guilty of sexual battery by restraint of Jessica S. (counts 9, 10) and of falsely imprisoning her (count 3). The trial court sentenced Sanchez concurrently on counts 2 and 3. Sanchez now contends that the trial court should have stayed the sentences on counts 2 and 3, under section 654.

Section 654, subdivision (a), provides that an act or omission punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but not under more than one provision. The section thus bars multiple punishments for offenses arising out of a single occurrence where all were incident to an indivisible course of conduct or a single objective. (People v. Correa (2012) 54 Cal.4th 331, 335; People v. Jones (2012) 54 Cal.4th 350, 358.) Section 654 involves a two-step inquiry. (People v. Corpening (2016) 2 Cal.5th 307, 311–312.) First, we consider whether the different crimes were completed by a single physical act. (Ibid.) If so, then the defendant may not be punished more than once for that act and we need not proceed to the second inquiry, whether the course of conduct reflected a single intent and objective or multiple ones. (Ibid.) Whether section 654 applies is usually a question of fact for the trial court, and we review its findings in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Here, Sanchez engaged in several physical acts, including moving Jessica S. and Jessica R. to his patrol car. Therefore, we need to consider whether his course of conduct reflected a single intent and objective. He contends it did: his only intent and objective in falsely imprisoning his victims was to carry out the sexual batteries. The People counter that once Sanchez completed his sexual batteries his intent changed, his intent now was to prevent them from reporting the incidents.

The People rely on People v. Saffle (1992) 4 Cal.App.4th 434 at page 437, where the defendant sodomized the victim. When someone knocked on the door, the defendant initially would not let the victim answer it, telling her that if she told anyone he would kill her and her children. (Ibid.) The defendant was convicted of false imprisonment and of various sex offenses, and the trial court imposed consecutive sentences. Saffle found that section 654 did not apply. Once the sexual offenses were completed and the defendant was no longer interested in fulfilling a sexual objective, he was seeking to prevent the victim from reporting the crimes. (Id. at p. 440.)

People v. Saffle, supra, 4 Cal.App.4th 434 is distinguishable. There, the defendant’s distinct objective of dissuading the witnesses made the offenses divisible. (Id. at p. 440.) In contrast, Sanchez’s admonition to Jessica S. to do as she was told or she would be arrested and telling Jessica R. he would let her go if she did what he wanted and moving them to the patrol car were not separate and apart from the sexual batteries. There was no clear point in time when the batteries stopped but Sanchez continued to threaten his victims to get them to do something other than comply with his sexual demands. The imprisonments here were incidental to the sexual batteries.

DISPOSITION

The trial court is directed to modify the judgment by staying the sentences imposed on counts 2 and 3. The clerk of the superior court is directed to modify the abstract of judgment and to forward the modified abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.

Filed 1/22/20 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID HIDEO BROWN,

Defendant and Appellant.

B293058

(Los Angeles County

Super. Ct. No. TA145263)

APPEAL from a judgment of the Superior Court of Los Angeles County, H. Clay Jacke II, Judge. Affirmed and remanded with directions.

Helen Hoeffel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Acting Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent.

_______________________________

INTRODUCTION

A jury convicted David Brown of battery against a person with whom he had a dating relationship and simple assault as a lesser included offense of assault with a deadly weapon. Brown argues the trial court erred in refusing his request for an instruction on the theory of accident and in precluding his trial attorney from using the word “accident” during closing argument. We conclude the trial court’s errors in refusing the accident instruction and in prohibiting counsel from using the word “accident” were harmless. We affirm the convictions and remand the matter to allow Brown to request a hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 on his ability to pay the assessments and fines the trial court imposed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brown Shoots a BB Gun or Air Pistol at His Girlfriend and Gets into a Fight Outside Her Mobile Home

Brown lived with his girlfriend Shirley Hardley and their daughter in a mobile home. Angelita Perez and her family also lived in the mobile home.

Early one evening Brown, who had been sleeping in his car for several nights, stood outside the mobile home shouting at Hardley and demanding she return his possessions. According to Perez, Brown had been drinking and smelled of alcohol. Hardley denied she had Brown’s belongings. Perez and Hardley went outside to talk to Brown.

At some point, Brown fired three or four shots from a BB gun or air pistol at Hardley. One shot hit Hardley in the forehead and another on the arm.

Perez and a neighbor spoke with Brown and attempted to calm him down. Brown said he would not leave without his possessions. He threw a punch at Hardley, but Perez stood between them and prevented Brown from hitting Hardley with much force.

Hardley and Perez went back inside the mobile home, and Perez locked the front door behind them. Brown knocked on the door and demanded his belongings. Brown said he “was going to kill” everyone in the mobile home. Someone opened the door, and Victor Gunnoe, Perez’s 19-year-old son, and Alex, Perez’s 18 year old-son, ran out and attacked Brown. Gunnoe said that he and Brown “got into a little scuffle or whatever” and that he hit Brown at least three times before Gunnoe fell down the front stairs of the mobile home.

Brown walked backed to his car. Perez tried to pursue Brown, but Hardley stopped her. Hardley testified that, before he drove away, Brown said to Perez, “I would never do this, Angie. I love Vic.”

Still on the ground, Gunnoe noticed his arm was cut, which he did not realize until he saw Brown walking away and holding a knife. Perez observed that “dark” flesh was visible and that some of the skin and muscle in Gunnoe’s upper left arm “fell down.” Hardley applied rags to stop the bleeding. Gunnoe suffered an eight-centimeter laceration in his arm that required surgery and 18 staples.

Police arrested Brown three days later. Officers found two steak knives, a BB gun, and a liquor bottle in Brown’s car.

B. The Jury Convicts Brown of Misdemeanor Domestic Battery and Misdemeanor Assault

The People charged Brown with two counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1), one based on the assault with the knife and one based on the assault with the BB gun. The court subsequently granted a motion by the People to amend the latter count to battery on a person with whom the defendant had a dating relationship, in violation of section 243, subdivision (e)(1).

Counsel for Brown asked the trial court to instruct the jury on the issue of accident, either with CALCRIM No. 3404 or CALJIC No. 4.45. The trial court refused, finding “there is no substantial evidence . . . supporting the giving of the accident instruction.” The court stated counsel for Brown could still “argue that [Brown] did not have the required intent or that it was not willful.” The trial court further ordered counsel for Brown not to use the word “accident” during closing argument.

The jury found Brown not guilty of assault with a deadly weapon based on the use of the knife, but guilty of the lesser included offense of simple assault. The jury also found Brown guilty of battery on a person with whom he had a dating relationship.

The court sentenced Brown to probation for three years. The court ordered Brown to pay two $40 court operations assessments under section 1465.8, two $30 court facilities assessments under Government Code section 70373, and a $150 restitution fine under section 1202.4. The court also imposed and stayed execution of a $150 probation revocation fine. During the sentencing hearing, Brown did not object to imposition of the assessments or fines, nor did he argue he did not have the ability to pay them.

Brown challenges his conviction for assault, but not his conviction for domestic battery. He also argues the trial court violated his due process rights by imposing the fines and assessments without determining Brown’s ability to pay them.

DISCUSSION

A. The Trial Court’s Error in Refusing To Instruct on the Theory of Accident Was Harmless
B.

1. The Trial Court Erred in Denying Brown’s Request for an Accident Instruction

Accident is not an affirmative defense. “Instead, it is a request for an instruction that negates the intent element” of a crime. (People v. Gonzalez (2018) 5 Cal.5th 186, 199, fn. 3; see People v. Jennings (2010) 50 Cal.4th 616, 674 [accident is not an affirmative defense, but is “‘a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime’”].) Thus, a request for an instruction on the theory of accident is a pinpoint instruction that “‘relate[s] particular facts to a legal issue in the case or “pinpoint[s]” the crux of a defendant’s case . . . .’” (Jennings, at p. 675.) The trial court must give an accident instruction “upon request when there is evidence supportive of the theory.’” (Ibid.; see Gonzalez, at p. 199, fn. 3 [“a trial court must provide a requested pinpoint instruction on such issues [as accident] where ‘“there is evidence supportive of the theory”’”]; People v. Anderson (2011) 51 Cal.4th 989, 996-997 [“‘“when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, . . . a ‘pinpoint instruction’ . . . must be given only upon request”’”].) But the court “‘has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.’” (People v. Larsen (2012) 205 Cal.App.4th 810, 823.)

“Substantial evidence in this context ‘“is ‘evidence sufficient “to deserve consideration by the jury,” not “whenever any evidence is presented, no matter how weak.”’”’” (People v. Larsen, supra, 205 Cal.App.4th at p. 823.) In particular, “‘the jury must be instructed when there is evidence that “deserve[s] consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable [people] could have concluded’” that the specific facts supporting the instruction existed.’” (Id. at p. 824.) “‘“Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.”’” (People v. Eid (2010) 187 Cal.App.4th 859, 879.) We review the trial court’s refusal to give an instruction on the theory of accident de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

Substantial evidence supported Brown’s theory of accident. When Brown knocked on the door, it opened from inside. Gunnoe came out, approached Brown, and punched him multiple times. There were several witnesses to the fight, but no one saw Brown use a knife, and there was no evidence concerning how Brown’s knife cut Gunnoe. After the fight, Brown stated he loved Gunnoe and would never hurt him. It was a reasonable inference from this evidence that Gunnoe startled Brown when he came out the door to fight Brown and that Brown accidently cut Gunnoe in the ensuing struggle. (See People v. Brooks (2017) 3 Cal.5th 1, 57 [“‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’”].)

Citing People v. Hendricks (1988) 44 Cal.3d 635, the People argue Brown’s “self-serving hearsay declaration that he would ‘never hurt [Gunnoe]’ because he ‘love[d] him’” was insufficient to justify giving the instruction. The People, however, do not argue the trial court abused its discretion in ruling the statement was admissible under Evidence Code section 1250. And Hendricks is distinguishable. There the Supreme Court held the “defendant’s self-serving tape-recorded statements denying an intent to kill” was not substantial evidence to support giving a voluntary manslaughter instruction “in light of [the] evidence” the defendant “shot [the first victim] six times at point-blank range, the last three times as [the first victim] lay on the floor unconscious,” and shot the second victim “five times at point-blank range, the last three times as [the second victim] lay prone on the bed.” (Id. at p. 643.) The evidence here was very different: Although, as the People point out, Brown obviously brought a knife with him to the mobile home, there was little if any evidence regarding how he used it or whether he intended to use it during the physical altercation with Gunnoe.

Moreover, the trial court admitted certain testimony as relevant because it tended to prove or disprove the knifing was an accident. For example, when the court ruled (over counsel for Brown’s objections) that Brown’s statement he was going to kill everyone inside the mobile home was admissible, the court stated the statement was relevant to show Brown was the aggressor and “it’s not an accident what happened.” When counsel for Brown raised the issue again, the court ruled: “I understand your objection, but it’s overruled. I will allow the statement, ‘I’m going to kill all of you,’ to be admitted. I think it does negate any accident.” Conversely, when the court ruled (over the prosecutor’s objections) that Hardley could testify Brown said he loved Gunnoe and would never hurt him, the court stated the statement was relevant to Brown’s state of mind and “to negate accident and self-defense.” And yet when Brown asked the court to give an accident instruction that would have told the jury how to evaluate this evidence, the court refused. The court erred in refusing to give an instruction on the theory of accident after admitting evidence, from both sides, that the court ruled was relevant to that very theory.

2. The Trial Court’s Instructional Error Was Harmless

In noncapital cases, we review instructional error for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Beltran (2013) 56 Cal.4th 935, 955; People v. Wharton (1991) 53 Cal.3d 522, 571; People v. Larsen, supra, 205 Cal.App.4th at p. 830.) Under the Watson standard, “a conviction ‘may be reversed in consequence of [instructional] error only if, “after an examination of the entire cause, including the evidence” [citation]), it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred.’” (People v. Molano (2019) 7 Cal.5th 620, 670; see People v. Gonzalez, supra, 5 Cal.5th at p. 200, fn. 4 [“Under Watson, the error is harmless unless there is a reasonable probability of a different result absent the error.”].)

The trial court instructed the jury pursuant to CALJIC No. 9.00 that, to prove Brown committed an assault, the People had to prove Brown acted “willfully,” which meant he acted “intentionally.” The trial court also instructed the jury on the definition of willfully and its relationship to intent. Thus, when the jury convicted Brown of assault, the jury necessarily found Brown acted intentionally, not accidentally. (See People v. Jones (1991) 234 Cal.App.3d 1303, 1315-1316 [failure to give an accident instruction was harmless where the trial court properly instructed the jury on the elements of the offense, “thus implicitly resolving the question of that defense adversely to defendant”], disapproved on another ground in People v. Anderson, supra, 51 Cal.4th at p. 998, fn. 3; see also People v. Wright (2006) 40 Cal.4th 81, 98 [instructional error is “harmless beyond a reasonable doubt under circumstances in which ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’”]; People v. Lujano (2017) 15 Cal.App.5th 187, 195-196 [same].) There is no reasonable probability Brown would have obtained a better result had the trial court given an accident instruction.

B. The Trial Court’s Error in Ordering Counsel for Brown Not To Use the Word “Accident” in Closing Argument Was Harmless

“It is firmly established that a criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact. [Citations.] Nonetheless, it is equally settled that a judge in a criminal case ‘must be and is given great latitude in controlling the duration and limiting the scope of closing summations.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1184; see People v. Simon (2016) 1 Cal.5th 98, 147.) We review limitations on closing argument for abuse of discretion. (Simon, at p. 147; People v. Benavides (2005) 35 Cal.4th 69, 110.)

The trial court prevented counsel for Brown from using the word “accident” during closing argument:

“[Counsel for Brown]: You’re saying I can argue it as I wish, but I can’t use the word ‘accident.’

“The Court: Correct, unless you have authority to the contrary.

“[Counsel for Brown]: Well, I think ‘accident,’ just the plain meaning of the word, is the opposite of not acting with the general intent and not acting willfully.

“The Court: All right. As I indicated, absent either statutory or case authority—I appreciate your wisdom as always—but I am ordering you not to use that language.”

The trial court’s prohibition on using the word “accident” in closing argument was erroneous. There was little reason to preclude counsel for Brown from using the word “accident” but allow him, perhaps aided by a thesaurus at counsel table, to use the word’s synonyms. And counsel for Brown had a point: If Brown acted accidentally, he did not assault Gunnoe with the requisite mental state to commit assault with a deadly weapon. (See People v. Anderson, supra, 51 Cal.4th at p. 998 [“‘The accident defense amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.’”]; People v. Coria (1999) 21 Cal.4th 868, 876 [“a crime cannot be committed by mere misfortune or accident”].)

Nevertheless, the court’s erroneous gag order was harmless. Counsel for Brown was able to and did argue concepts legally equivalent to accident. For example, counsel for Brown argued that the prosecutor had not proven beyond a reasonable doubt Brown acted willfully and intentionally, that Gunnoe’s punching or falling onto Brown while Brown stood with a knife was not a willful act by Brown, that there was no evidence Brown willfully or intentionally pulled out a knife and swung it or used it to stab Gunnoe, that Brown “might have cut [Gunnoe] unintentionally,” that the issue was whether Brown “willfully and unlawfully did something with that knife,” that the prosecution had not proven “the wound was inflicted willfully, that is, on purpose,” and that Brown “didn’t mean to do this.” Counsel essentially argued it was an accident. Therefore, any error in ordering counsel for Brown not to use the word “accident” was harmless.

C. Remand Is Necessary To Give Brown the Opportunity To Request a Hearing on His Ability To Pay the Assessments and Fines

In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) this court held trial courts cannot impose a court operations assessment under section 1465.8 or a court facilities assessment under Government Code section 70373 without first determining the defendant’s ability to pay. (Dueñas, at pp. 1168, 1172.) Brown argues that Dueñas mandates reversal of the two court operations assessments and the two court facilities assessments the trial court imposed and that Dueñas requires the trial court to stay execution of the criminal restitution fine imposed under section 1202.4.

The People state they do “not take issue with the Dueñas opinion insofar as it holds the imposition of assessments for court operations and court facilities may not be imposed where a defendant demonstrates the inability to pay.” The People also state they do “not seek to uphold the imposition of these assessments on those who have no ability to pay.” The People argue only that Brown forfeited this argument by failing to raise it in the trial court and that the record does not establish Brown is unable to pay the assessments and fines. On the latter issue, the People argue that Brown’s restitution fine “should be reviewed under the excessive fines clause” of the Eighth Amendment to the United States Constitution and that this court’s due process analysis in Dueñas was incorrect.

Brown did not forfeit the argument. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), at the time the trial court sentenced Brown, “Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court’s consideration of a defendant’s ability to pay. Indeed . . . in the case of the restitution fine, . . . section 1202.4, subdivision (c), expressly precluded consideration of the defendant’s inability to pay. When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Castellano, at p. 489; see People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Jones (2019) 36 Cal.App.5th 1028, 1032; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 [“‘[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence’”].)

Nor does Dueñas require the defendant to demonstrate adverse consequences from imposition of the fines, fees, and assessments. “[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court. In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections.” (Castellano, supra, 33 Cal.App.5th at p. 490; see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) Thus, on remand Brown does not need to present evidence of potential adverse consequences beyond the amount of the assessments or fines, and the trial court should consider all relevant factors in determining Brown’s ability to pay. (See Castellano, at p. 490.)

The People’s Eighth Amendment argument does not change the result. As we explained in People v. Belloso (Nov. 26, 2019, B290968) ___ Cal.App.5th ___ [2019 WL 6317269], the Supreme Court has held that, in analyzing “the constitutionality of civil penalties imposed by the trial court, ‘It makes no difference whether we examine the issue as an excessive fine or a violation of due process.’ Because both the Dueñas due process and [the] excessive fines analyses require consideration of a defendant’s ability to pay, there is no need to analyze the constitutionality of fines and fees under the Eighth Amendment.” (Id. at p. ___ [p. 8], quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) An Eighth Amendment analysis must include an evaluation of the defendant’s ability to pay, which is “critical to the analysis, especially for the minimum restitution fine (currently $300) that must be imposed in every case regardless of the defendant’s culpability and the defendant’s ability to pay.” (Belloso, at p. ___ [p. 9].) Cases analyzing the constitutionality of imposing fines and assessments on indigent defendants under the Eighth Amendment are asking the wrong question and then answering it incompletely. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055.)

Finally, imposition of the fines and assessments violated Brown’s due process rights. As we explained in People v. Belloso, supra, ___ Cal.App.5th ___ [2019 WL 6317269], it is “a basic principle of fairness that the rich and poor should have equal access to the justice system, consistent with the principle underlying the holding in [Griffin v. Illinois (1956) 351 U.S. 12, 17 [76 S.Ct. 585]] that ‘all people charged with crime must, so far as the law is concerned, “stand on an equality before the bar of justice in every American court.”’” (Belloso, at p. ___ [p. 6].) “Without an ability-to-pay determination, the consequences to a defendant from imposition of an assessment or fine differ solely because of his or her financial condition. As this court observed in Dueñas, collection of unpaid assessments could damage the defendant’s credit, potentially interfere with child support obligations, restrict employment opportunities, and otherwise impact the defendant’s reentry to society and rehabilitation. [Citation.] These consequences are particularly troubling as to the assessments because they are imposed not as a punishment, but to fund the court system. [Citation.] . . . [F]ailure to pay the restitution fine could similarly result in serious consequences, including preventing a defendant from obtaining dismissal of his or her conviction and enforcement of a civil judgment against the defendant. [Citation.] In light of these differing consequences, under Griffin, there is no ‘“equality before the bar of justice.”’” (Ibid.) Thus, a “defendant who does not pay fines or fees faces potentially severe consequences that punish him or her based on poverty, not the underlying crime.” (Ibid.) Cases finding no due process violation are wrongly decided. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 920.)

DISPOSITION

The judgment is affirmed. The matter is remanded to allow Brown to request a hearing to determine his ability to pay the assessments and fines imposed by the trial court. If Brown demonstrates his inability to pay, the trial court must strike the court facilities and court operations assessments and stay the execution of the restitution fines. If Brown fails to demonstrate his inability to pay, the court may enforce the assessments and fines the court previously imposed.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.

Filed 1/22/20 P. v. Cooper CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUESE DAVION COOPER,

Defendant and Appellant.

E070962

(Super.Ct.No. BAF1700970)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed and remanded with directions.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Michelle Ryle and Stephanie Chow, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Marquese Davion Cooper of first degree residential burglary. After finding true various sentencing allegations that defendant suffered prior convictions, including three “strike” convictions for purposes of sentencing under the three strikes law, the trial court sentenced defendant to a determinate term of 17 years in state prison, plus an indeterminate term of 25 years to life. The court also imposed various fees. On appeal, defendant contends: (1) the trial court erred by admitting evidence of his 2011 first degree residential burglary conviction; (2) we must remand this case for the trial court to consider whether to dismiss one or more of defendant’s five-year enhancements for serious prior felonies under statutory amendments enacted after he was sentenced (Pen. Code, §§ 667, subd. (a), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2); and (3) various fees imposed at sentencing must be stricken. The People concede one of the fees must be stricken. In addition, the parties agree defendant’s two one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b), as amend. by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020) must be stricken under a more recent statutory amendment.

We remand for resentencing and direct the trial court to strike two of defendant’s fees, to exercise its new discretion to determine whether to strike one or more of defendant’s five-year serious prior felony enhancements, and to strike both of defendant’s one-year prior prison term enhancements. In all other respects, we affirm the judgment.

I.

FACTS AND PROCEDURAL BACKGROUND

At 2:30 p.m., on August 25, 2017, A.B. left her Cabazon apartment to go to work. Her front door and windows were closed and locked when she left.

Around 5:00 p.m., J. and defendant visited J.W. (A.B.’s neighbor) at his apartment. J.W. and J. were friends, and J. would visit him three to four times a week. J.W. had never met defendant before. About 20 minutes later, defendant said he was going to walk home and left J.W.’s apartment. Defendant had a jacket with him, but no bag. J. stayed for another 25 minutes before leaving. J.W. walked J. to her car, which was parked in front of the apartment.

After J. drove away, J.W. walked over to see a neighbor. He saw a man with a jacket and a dark bag walk from behind the apartments. J.W. then noticed that a window screen to A.B.’s apartment had been pulled away, and the front door was open about an inch and a half. J.W. had driven by A.B.’s apartment an hour earlier and had not noticed the front door open or the window screen pushed in. As he continued walking in an attempt to discover who had come out from behind the apartments, J.W. saw defendant get into J.’s car. Defendant now had a bag with him.

A.B.’s sister, D.B., lived in a home next door. She was outside smoking a cigarette when she saw J. drive her black vehicle out of the driveway to the apartment complex with defendant in the passenger seat. D.B. recognized J. because of her frequent visits to J.W., and she knew defendant from high school. The dome light to the vehicle was illuminated, and D.B. saw defendant hunched over fiddling with something on the floorboard. A moment later, J.W. walked over and said A.B.’s front door was open. D.B. knew her sister was at work, and she knew of no reason why the front door would be open.

The two then walked to A.B.’s apartment. D.B. saw the front door open and called A.B. on the telephone to let her know. A.B. said she had not left her door open. D.B. and J.W. then entered the apartment. D.B. saw that a kitchen window screen had been pushed open, and a chair placed beneath the window had a shoe print on it. D.B. then exited the apartment and waited for her sister to come home. As she waited outside, D.B. saw J. drive back into the apartment complex, this time accompanied by her boyfriend. This was approximately 25 to 30 minutes after D.B. had seen J. drive away from the complex. D.B. approached J. and asked if she knew anything about the break-in, and J. once more drove off.

As she was returning home from work, A.B. saw J. and her boyfriend driving out of the complex. When she entered her apartment, A.B. saw that things had been thrown around, her window screen had been ripped, and her laptop computer was missing. She then locked her front door and went with D.B. to Banning to speak to J. and find out what she knew about the break-in. When they arrived at J.’s residence, A.B. and D.B. saw the black vehicle parked in the driveway with J.’s boyfriend in the driver’s seat. The boyfriend said J. had gone somewhere on a bicycle, and he was going to drive around and look for her. A.B. and D.B. followed. When the boyfriend stopped, J., who had been hiding in the back seat, threw a backpack containing A.B.’s laptop out the window and said: “I had nothing to do with it.” The sisters then followed J. and her boyfriend to Moreno Valley where they managed to flag down a police officer, who stopped the vehicle and notified Cabazon police about the break-in.

When she returned to her apartment, A.B. discovered that some of her clothing and shoes were missing, as well as $800 in cash. She then noticed the shoe print on a chair in the kitchen, which had not been there before, and an eyeglass case on the kitchen table, which was not hers. A police officer investigating the burglary opened the blinds to the kitchen window, and a screwdriver that did not belong to A.B. fell out. The shoe print on the chair had a diagonal tread, a distinct border, the letters A, S, and D, and the name Adidas.

Defendant was arrested a few days later at a casino after he was confronted by D.B. and fled on foot. He was wearing Adidas shoes with a diagonal tread and a definite border. A.B. had not given defendant permission to enter her apartment.

At trial, the parties stipulated that on April 19, 2011, defendant was convicted of first degree residential burglary in San Diego County. A jury convicted defendant on the sole felony count of first degree residential burglary. (Pen. Code, § 459.) In a bifurcated proceeding, the trial court found true the allegations that defendant had suffered three strike priors (Pen. Code, §§ 1170.12, subd. (c)(2), 667, subds. (c), (e)(2)(A)), three serious felony priors (Pen. Code, § 667, subd. (a)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).

The court denied defendant’s request pursuant to Romero to strike one or more of his “strike” convictions and sentenced him to a determinate term of 17 years in state prison (three five-year serious felony enhancements, plus two one-year prior prison term enhancements), plus an indeterminate sentence of 25 years to life under the three strikes law for the burglary conviction. The court imposed the following fees and fines: a $1,095 presentence probation report fee, but the court found defendant lacked the ability to pay and stayed the fee (Pen. Code, § 1203.1b); a $514.58 booking fee (Gov. Code, § 29550.2); a $1,500 incarceration fee, but stayed it (Pen. Code, § 1203.1c); a $30 conviction assessment (Gov. Code, § 70373); a $40 court operations assessment fee (Pen. Code, § 1465.8); a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); and a $300 parole revocation restitution fine, to be stayed pending successful completion of parole and to be permanently stayed thereafter (Pen. Code, § 1202.45).

Defendant timely appealed.

II.

DISCUSSION

A. The Trial Court Correctly Admitted Evidence of Defendant’s Prior Conviction for First Degree Burglary.

Defendant argues the trial court erred prejudicially by admitting evidence of his 2011 conviction for first degree residential burglary pursuant to Evidence Code section 1101, subdivision (b) (§ 1101(b)), and by not excluding the evidence as overly prejudicial pursuant to Evidence Code section 352. We find no error and, even if we did, it was harmless.

“Only relevant evidence is admissible (Evid. Code, §§ 210, 350), ‘and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)’ [Citation.] ‘The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’” (People v. Harris (2005) 37 Cal.4th 310, 337.)

Evidence Code section 1101, subdivision (a), generally prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, “to prove his or her conduct on a specified occasion.” Section 1101(b) clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when it is relevant to establish some fact other than the person’s disposition to commit such an act, such as motive, intent, and absence of mistake or accident.

“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.”’” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

“The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.) “[E]vidence of uncharged misconduct ‘“is so prejudicial that its admission requires extremely careful analysis”’” under Evidence Code section 352. (People v. Lewis (2001) 25 Cal.4th 610, 637.) “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)

“‘“Rulings made under [Evidence Code sections 1101 and 352 . . .] are reviewed for an abuse of discretion. [Citation.]” [Citation.] “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’”’” (People v. Rogers (2013) 57 Cal.4th 296, 326.)

At trial, defense counsel argued that, unless defendant testified “and put[] it into issue,” evidence of defendant’s prior first degree residential burglary conviction was not relevant to prove intent because “intent won’t be an issue in this case.” On appeal, defendant correctly concedes the evidence of his 2011 conviction for first degree residential burglary was relevant for purposes of establishing intent pursuant to Evidence Code section 1101(b). By pleading not guilty, defendant “place[d] at issue all material allegations in the accusatory pleading ([Pen. Code,] § 1019).” (People v. John (2019) 36 Cal.App.5th 168, 175.) Therefore, he obligated the prosecutor to prove every element of the crime beyond a reasonable doubt and, absent a formal stipulation that the element of intent had been established, the prosecutor could seek to introduce Evidence Code section 1101(b) evidence to prove intent even though defendant did not dispute that element. (People v. Scott (2011) 52 Cal.4th 452, 470-471; People v. Lindberg (2008) 45 Cal.4th 1, 23; see Estelle v. McGuire (1991) 502 U.S. 62, 69.)

In addition, the probative value of defendant’s 2011 conviction was not substantially outweighed by its prejudicial impact, such that the trial court should have excluded it pursuant to Evidence Code section 352. Rather than introduce testimony about the circumstances of the 2011 offense to establish the similarity between the uncharged crime and the current offense, the prosecutor elected to introduce a bare-bones stipulation to the mere fact that defendant had previously been convicted of first degree residential burglary. While preserving his objection to admission of any Evidence Code section 1101(b) evidence, defendant stipulated: “Defendant was convicted of Penal Code Section 459, first-degree residential burglary, on April 19th, 2011, in San Diego County.” The stipulation—with absolutely no details of the prior crime—was much weaker and far less inflammatory than the strong direct testimony the prosecutor introduced about the circumstances of the charged crime. (See People v. Eubanks (2011) 53 Cal.4th 110, 144 [“The potential for such prejudice is ‘decreased’ when testimony describing the defendant’s uncharged acts is ‘no stronger and no more inflammatory than the testimony concerning the charged offenses.’”].) And neither the prosecutor nor defense counsel spent much time discussing the 2011 conviction during closing arguments. In other words, “[t]he evidence was presented quickly, and the parties did not dwell on it.” (People v. Jones (2011) 51 Cal.4th 346, 371.)

Finally, even if we were to conclude the trial court erred by admitting the evidence under section 1101(b), no miscarriage of justice resulted, meaning the error was harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836; Evid. Code, § 353, subd. (b); see People v. Malone (1988) 47 Cal.3d 1, 22 [erroneous admission of § 1101(b) evidence subject to Watson harmless error analysis].) Under Watson, an error is reversible if there is a reasonable probability that the outcome of the trial would have been more favorable to the defendant in the absence of the error. (People v. Watson, supra, at p. 836.) A reasonable probability in this context means merely a reasonable chance, more than an abstract possibility. (People v. Wilkins (2013) 56 Cal.4th 333, 351.)

The trial court properly instructed the jury with CALCRIM No. 375 on how to evaluate the evidence of defendant’s 2011 conviction for first degree residential burglary. The jury was told it could consider defendant’s prior conviction only for the purposes of determining whether “defendant acted with the intent to commit theft.” When evaluating the prior conduct, the jury was instructed to “consider the similarity or lack of similarity between the uncharged act and the charged offense.” Finally, the jury was told the prior conduct was only one factor it could consider when deciding whether defendant was guilty of the charged burglary, that by itself the uncharged offense was not enough to establish guilt, and that the prosecutor still had to prove the current charge beyond a reasonable doubt. We must presume the jury understood and properly applied that instruction. (People v. Buenrostro (2018) 6 Cal.5th 367, 431; People v. Jones, supra, 51 Cal.4th at p. 371.)

Because the jury was not given any data whatsoever as to the circumstances of the prior burglary, it was unable to determine the similarity or dissimilarity between the current and prior offenses as directed by the instruction. A reasonable jury would not have placed much, if any, weight on the section 1101(b) evidence. In short, it is not reasonably probable defendant would have obtained a better result had the trial court excluded the evidence.

B. We Remand for the Trial Court to Consider Whether to Strike One or More of Defendant’s Five-year Serious Prior Felony Enhancements and to Strike Both of His One-year Prior Prison Term Enhancements.

Defendant contends we must remand for resentencing so the trial court may exercise its new discretion to strike one or more of his five-year serious felony enhancements under Senate Bill No. 1393 (2017-2018 Reg. Sess.). (See Pen. Code, §§ 667, subd. (a), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2.) The People concede the new discretion applies to defendant’s nonfinal judgment but argue a remand would be futile. We agree the statutory amendments apply to defendant and conclude remand is appropriate.

“On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amends [Penal Code] sections 667[, subdivision] (a) and 1385[, subdivision] (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. [Citation.] Under the . . . versions of these statutes [applicable when the crimes in this case occurred and at sentencing], the court [was] required to impose a five-year consecutive term for ‘any person convicted of a serious felony who previously has been convicted of a serious felony’ (§ 667[, subd.] (a)), and the court ha[d] no discretion ‘to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.’ (§ 1385[, subd.] (b).)” (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) In Garcia, this court, after applying the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 and its recent Supreme Court progeny, concluded the Legislature intended the amendments to sections 667 and 1385 “to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective.” (Garcia, at p. 972.)

The People argue defendant will not benefit from the amendments to Penal Code sections 667 and 1385 because “the record clearly indicates that the trial court would not have exercised its discretion to strike the prior serious felony enhancement if it had the discretion to do so.” “We are not required to remand to allow the court to exercise its discretion if ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement’ even if it had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) “The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court’s statements and sentencing decisions to infer what its intent would have been.” (Id. at p. 273.)

At sentencing, the trial court denied defendant’s request pursuant to Romero to strike one or more of his “strike” convictions for purposes of indeterminate sentencing under the three strikes law. The court stated: “I believe that [defendant] does fall within the spirit and certainly the letter of the Three Strikes scheme. And I think it would be an abuse of discretion to strike any of the priors at this point.” But the court acknowledged defendant’s criminal history was “essentially without violence,” and that his eligibility for an indeterminate sentence of 25 years to life was premised on “the multiplicity of offenses” he had committed. That the trial court believed defendant fell within the spirit and letter of the three strikes law, and that it would have been an abuse of discretion to dismiss any of his strike offenses, does not necessarily mean the court would not have considered striking one or more of defendant’s five-year sentence enhancements for purposes of defendant’s determinate sentence. Nothing in the record leads us to conclude “there is no possibility the trial court would strike the enhancement were we to remand.” (People v. Jones, supra, 32 Cal.App.5th at p. 273.) Therefore, we conclude it is necessary to remand for the trial court to exercise its discretion and determine whether it is appropriate to strike one or more of defendant’s five-year serious prior felony enhancements.

In addition, on October 8, 2019, after the main briefs were filed in this appeal, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.) to amend Penal Code section 667.5, subdivision (b). At the time defendant was sentenced, “a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied ‘for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.’ ([Pen. Code,] § 667.5, subd. (b).)” (People v. Buycks (2018) 5 Cal.5th 857, 889.) But effective January 1, 2020, the one-year enhancement will only apply to prison terms served for conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Pen. Code, § 667.5, subd. (b), as amend. by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant did not serve a prior prison term for a sexually violent offense, and his judgment will become final well after Senate Bill No. 136 went into effect. (People v. Buycks, at p. 876, fn. 5 [“A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired.”].) Therefore, if the amended statute applies retroactively, defendant’s two one-year prior prison term enhancements must be stricken.

We directed the parties to submit supplemental briefs addressing Senate Bill No. 136, and they agree it is an ameliorative amendment that applies retroactively to nonfinal judgments, such as this one. We agree. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-343 [concluding Sen. Bill. No. 136 applies retroactively to nonfinal judgments]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Therefore, we remand for the trial court to resentence defendant. At that time, the court shall strike both of defendant’s one-year prior prison term enhancements.

C. Defendant Forfeited His Challenge to the Booking Fee, But We Direct the Trial Court to Strike the Presentence Probation Report and Incarceration Fees.

Defendant contends the trial court erred by imposing the booking and presentence probation report fees because the court had already concluded he lacked the ability to pay them, and the court erred by imposing an incarceration fee because he was not ordered to serve time in local custody. The People concede the incarceration fee must be stricken, but argue defendant forfeited his claims of error as to the other fees and his claims fail on their merits. We find defendant forfeited his challenge to the booking fee, but direct the trial court to strike the other two fees.

Imposition of the booking fee under Government Code section 29550.2, and the fee for presentence probation reports under Penal Code section 1203.1b, are both dependent on the trial court finding defendant “has the ability to pay.” (Gov. Code,

§ 29550.2, subd. (a); Pen. Code, § 1203.1b, subd. (b)(2).) The trial court imposed the presentence probation report fee on defendant but stayed it because it concluded defendant lacked the ability to pay. The court made no finding as to defendant’s ability to pay the booking fee when it imposed it.

As the People contend, defendant interposed no objection whatsoever to imposition of the booking and presentence probation report fees, let alone an objection that he lacked the ability to pay them. “The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant’s ability to pay the imposed amounts. (See People v. Gamache (2010) 48 Cal.4th 347, 409 . . . ; People v. Case (2018) 5 Cal.5th 1, 52-53 . . . ; People v. Avila (2009) 46 Cal.4th 680, 728-729 . . . ; People v. Nelson (2011) 51 Cal.4th 198, 227 . . . ; People v. McCullough (2013) 56 Cal.4th 589, 590, 598-599 . . . ; People v. Trujillo (2015) 60 Cal.4th 850, 858-861 . . . .)” (People v Aviles (2019) 39 Cal.App.5th 1055, 1073.)

Notwithstanding defendant’s failure to object to imposition of the presentence probation report fee, that fee must be stricken because it was not lawfully imposed. (See People v. Rivera (2019) 7 Cal.5th 306, 349 [“An unauthorized sentence is reviewable on appeal regardless of whether it was objected to at trial.”].) “Where, as in this case, a statute posits ability to pay as a precondition of a requirement to pay a fee comparable to the one at issue here—such as the booking fee authorized by Government Code section 29550.2, subdivision (a)—the defendant has the right to a determination of his ability to pay the fee before the court may order payment.” (People v. Neal (2018) 29 Cal.App.5th 820, 826, italics added.) Once the trial court made an express finding that defendant lacked the ability to pay the fee, it could not lawfully impose the fee and it lacked the authority to simply stay its imposition. (Cf. People v. Jefferson (2016) 248 Cal.App.4th 660, 662-663 [“There is no statutory authority to suspend the drug program fee. The proper course of action is to decline to impose the fee rather than impose and suspend it. If the accused cannot afford to pay the $ 150 drug program fee, it may not be imposed.”].)

By not objecting to imposition of the $514.58 booking fee on the ground he lacked the ability to pay it, however, defendant forfeited his claim that the trial court erred by not finding he had the ability to pay. Defendant contends his claim of error is not subject to forfeiture because the court made a general finding that he lacked the ability to pay fees yet imposed the booking fee anyway, so his challenge is a purely legal one not subject to forfeiture. Not so. The trial court made a specific finding that defendant lacked the ability to pay the $1,095 presentence probation report fee, a sum almost twice the booking fee. The court obviously concluded (albeit, implicitly) defendant had the ability to pay the booking fee, and defendant was required to object if he disagreed.

Finally, we accept the People’s concession that the incarceration fee must be stricken. A sentencing court may direct “a defendant [who] is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other local detention facility as a term of probation or a conditional sentence” to pay the “reasonable costs of such incarceration” if it finds the defendant has the ability to pay. (Pen. Code, § 1203.1c, subd. (a).) Defendant was not sentenced to serve time in a local detention facility. Therefore, the incarceration fee simply could not be imposed on him. We will order it stricken on remand.

D. Imposition of Other Fees Without a Finding of Ability to Pay was Harmless.

Defendant contends we must strike the $40 court security fee, the $30 criminal conviction fee, the $300 restitution fine, and the $300 parole revocation fine because the trial court failed to make a finding that he had the ability to pay them, in violation of his due process rights as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157. As noted, ante, defendant interposed no objection whatsoever at sentencing to imposition of fees, so the People argue he has forfeited his claim of error. We conclude defendant did not forfeit his claim of Dueñas error, but we agree with the People that the trial court’s failure to make a finding of ability to pay was harmless beyond a reasonable doubt because defendant will have the ability to earn wages during his lengthy prison sentence and pay those fees.

People v. Dueñas, supra, 30 Cal.App.5th at pages 1168-1169, held a sentencing court violated the due process rights of a defendant who committed her acts out of poverty when it imposed certain mandatory fees and fines that lack a statutory exception without first making a finding the unemployed defendant (who suffered from cerebral palsy) had the ability to pay while she was on probation. A growing number of courts have concluded Dueñas was wrongly decided or should be limited to its extreme facts. (People v. Allen (2019) 41 Cal.App.5th 312, 318 [“[W]e agree with the analysis of numerous courts that have rejected Dueñas’s due process framework.”]; People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted Nov. 26, 2019, S258946 [“Is Dueñas’s expansion of due process in a manner that grants criminal defendants a protection not conferred by either its foundational pillars a correct interpretation? [¶] In our view, it is not.”]; People v. Kingston (2019) 41 Cal.App.5th 272, 279-282 [agreeing with Hicks’s rejection of Dueñas]; People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [“Although we do not reach whether Dueñas was correctly decided as to [its] extreme facts, in our view, the due process analysis in Dueñas does not justify extending its holding beyond those facts.”]; People v. Aviles, supra, 39 Cal.App.5th at pp. 1067-1068 [“We find that Dueñas was wrongly decided . . . .”].) The People do not contend Dueñas was incorrectly decided, so we need not reach that question today. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1030 [“The People do not contend that Dueñas was wrongly decided.”].)

The People contend defendant forfeited his claim of Dueñas error by not objecting that the trial court failed to make a finding of ability to pay before it imposed the challenged fees and fines. A number of courts have concluded Dueñas error is subject to the forfeiture doctrine. (People v. Anderson (2019) 42 Cal.App.5th 780, 787; People v. Hicks, supra, 40 Cal.App.5th at p. 328, fn. 3; People v. Rodriguez (2019) 40 Cal.App.5th 194, 206; People v. Newman (2019) 40 Cal.App.5th 68, 72; People v. Jenkins (2019) 40 Cal.App.5th 30, 39-41; People v. Aviles, supra, 39 Cal.App.5th at pp. 1073-1075; People v. Torres (2019) 39 Cal.App.5th 849, 860; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.) But, this court has already concluded in a published opinion that failure to object does not forfeit a claim of Dueñas error, so we reject the People’s argument. (People v. Jones, supra, 36 Cal.App.5th at pp. 1031-1034.)

In any event, we conclude imposition of the challenged fees and fines without a finding of ability to pay was harmless beyond a reasonable doubt. (People v. Jones, supra, 36 Cal.App.5th at pp. 1034-1035 [Dueñas error subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].) “[U]nlike the probationer defendant in Dueñas, it is entirely appropriate [on appeal] to consider the wages [a] defendant may earn in prison on the inability-to-pay issue. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 . . . [ability to pay may include a defendant’s prison wages]; § 2085.5 [outlining how a restitution fine balance may be collected from prison wages].)” (People v. Jenkins, supra, 40 Cal.App.5th at p. 41.)

“Wages in California prisons currently range from $12 to $56 a month. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); Cal. Dept. of Corrections and Rehabilitation, Operations Manual, ch. 5, art. 12, § 51120.6, pp. 354-355 (Jan. 1, 2019) . . . .) And half of any wages earned (along with half of any deposits made into his trust account) are deducted to pay any outstanding restitution fine. (Pen. Code, § 2085.5, subd. (a); Cal. Code Regs., tit. 15, § 3097, subd. (f).)” (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) Defendant was sentenced to state prison for a lengthy determinate term, plus an indeterminate term of 25 years to life. Although it will likely take him some time, defendant will have the opportunity during his lengthy prison sentence to pay his fees and fines through prison wages and gifts. (People v. Aviles, supra, 39 Cal.App.5th at p. 1077 [“While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence.”]; People v. Jones, supra, at p. 1035 [“Given that the restitution fine is $300 and the assessments are $70, Jones will have sufficient time to earn these amounts during his [six-year] sentence, even assuming Jones earns nothing more than the minimum.”]; People v. Johnson, supra, 35 Cal.App.5th at p. 139 [finding error harmless beyond a reasonable doubt because “[t]he idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable.”].)

In addition, there is nothing in the record to suggest defendant is physically unsound or is otherwise incapable of working while serving his sentence. (Pen. Code, § 2700 [“[E]very able-bodied prisoner” is required to work]; Cal. Code Regs., tit. 15, § 3040, subd. (a) [same]; see People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6 [“[C]onclusory statement” that defendant had a “bad back” and could not work in prison was insufficient basis for court “to conclude that appellant could not secure prison employment.”].) Granted, prisoners are not guaranteed paid labor. (See Cal. Code Regs., tit. 15, § 3040, subd. (k) [“An inmate’s assignment to a paid position is a privilege dependent on available funding, job performance, seniority and conduct.”]; id., § 3041.1 [criteria for assignment to vacant paid labor position]; People v. Rodriguez (2019) 34 Cal.App.5th 641, 648-649 [“Even assuming prison wages are relevant, there is no evidence paid work has been made available to [defendant].”].) But, in the absence of evidence to the contrary, we must presume defendant will become eligible for paid prison labor during his lengthy incarceration, and he will have the ability to pay his fines and fees.

III.

DISPOSITION

The matter is remanded for the trial court to resentence defendant. The court shall (1) strike the $1,095 presentence probation report fee and the $1,500 incarceration fee; (2) exercise its discretion in the first instance and determine whether it is appropriate to strike one or more of defendant’s five-year serious felony enhancements; and (3) strike both of defendant’s one-year prior prison term enhancements.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.

Michael Rigoletti sued Yihan Wang in the San Mateo small claims court, case number 19scs00003.

Party information:

Michael Rigoletti
Address: 870 Campus Drive Apt 321, Daly City, CA 94015
Phone: 415 680-4595

Yihan Wang
Address: 870 Campus Drive Apt 321, Daly City, CA 94015
2nd Address: 3485 Monroe Street #127, Santa Clara, CA 95015
Phone: 628 777-6188

The claim by Rigoletti against Wang was that his roommate did not pay rent for about one month, which also caused a late fee to be incurred.

During the hearing the following occurred:

Minutes Journals – At 3:17 p.m. – Court commences.

Defendant is present and moves forward with hearing today.

Defendant will move forward with out interpreter.

Parties sworn and testified.

Parties make their argument to the Court.

Plaintiff’s exhibits submitted and retained: 1- Account ledger, lease and letter.

Defendant’s exhibits submitted and retained: A- Text messages and bank statements.

Arguments presented. Evidence submitted to the court for ruling.

Matter is taken under submission.

Hearing concluded.
Case Events – CRC Worksheet – Decision Sheet – Matter Taken Under Submission; Due: May 28, 2019; Matter under submission.

Judgment was awarded in favor of Michael Rigoletti and against Yihan Wang for $1745

Case docket:

Case Information

19-SCS-00003 | MICHAEL RIGOLETTI vs. YIHAN WANG

Case Number
19-SCS-00003
Court
Small Claims
File Date
01/02/2019
Case Type
Small Claims $1501 – $5000
Case Status
Active
Party
Plaintiff
RIGOLETTI, MICHAEL

Defendant
WANG, YIHAN

Cause of Action

File Date
Cause of Action
Type
Filed By
Filed Against

01/02/2019
Plaintiff’s Claim
Action
RIGOLETTI, MICHAEL
WANG, YIHAN
Disposition Events
02/27/2019 Judgment

Judicial Officer
Borja, Hugo R.
Judgment Type
Small Claims Judgment – Contested

Comment
Comment (JUDGMENT ORDERED FOR PLAINTIFF AND AGAINST DEFENDANT)

Judgment – Monetary Award
Awarded To:
RIGOLETTI, MICHAEL
Awarded Against:
WANG, YIHAN
Amount
Damages: $1,695.00
Costs: $50.00
Total: $1745.00

Party

Names: RIGOLETTI, MICHAEL
WANG, YIHAN

Events and Hearings

01/02/2019 New Filed Case
01/02/2019 Plaintiff’s Claim
View Document Plaintiff’s Claim
01/02/2019 Cause Of Action
Action
Plaintiff’s Claim
File Date
01/02/2019
02/15/2019 Small Claims Request for Continuance
View Document Small Claims Request for Continuance
02/25/2019 Small Claims Request for Continuance Denied
View Document Small Claims Request for Continuance Denied MAILED TO ALL RESPECTIVE PARTIES
Comment
MAILED TO ALL RESPECTIVE PARTIES
02/27/2019 Small Claims Hearing
View Document ~CIV Minute Order – Small Claims Hearing 02/27/2019
View Document ~CIV Minute Order – Small Claims Hearing 02/27/2019
Judicial Officer
Borja, Hugo R.
Hearing Time
1:30 PM
Result
Held
Parties Present
Plaintiff: RIGOLETTI, MICHAEL
Defendant: WANG, YIHAN
02/27/2019 Decision Sheet
02/27/2019 Matter Taken Under Submission
Judicial Officer
Borja, Hugo R.
Comment
Matter under submission.
03/12/2019 Small Claims Notice of Entry of Judgment
View Document Small Claims Notice of Entry of Judgment WITH AFFIDAVIT OF MAILING
Comment
WITH AFFIDAVIT OF MAILING
05/08/2019 Memorandum of costs after judgment, acknowledgment of credit
View Document Memorandum of costs after judgment, acknowledgment of credit and declaration of accrued interest Cos
Comment
and declaration of accrued interest Costs: 190.00 Credit: 0.00 Interest: 26.77
05/08/2019 Writ of Execution Issued
Comment
to the County of SAN MATEO Issued On: 5/8/2019 Amount: 1,986.77
08/02/2019 Acknowledgment of Satisfaction of Judgment
View Document Acknowledgment of Satisfaction of Judgment Fully Satisfied
Comment
Fully Satisfied

Leslie Tidwell sued Del Rio Stone in the San Mateo small claims court, case number 19scs00004.

Party information:

Leslie aka Kiki Tidwell
Address: 20 Holdon Court, Portola Valley, CA 94028
Phone: 208 578-7769

Del Rio Stone
104 Constitution Drive Suite 6, Menlo Park, CA 94025
Phone: 650 473-9303

Leslie Tidwell claimed Del Rio was not able to perform an accepted bid contract and needed to return a full materials deposit.

At the hearing the following occurred:

Minute Order

LESLIE A TIDWELL vs. DEL RIO STONE 19-SCS-00004 02/25/2019 1:30 PM Small Claims Hearing Hearing Result: Held

Judicial Officer: Weibell, Anthony Location: Courtroom 2M Courtroom Clerk: Francis Arqueza; Marion Valino Courtroom Reporter:

Parties Present DEL RIO STONE Defendant TIDWELL, LESLIE A Plaintiff

Exhibits

Minutes Journals – At 3:44 p.m. – Court commences.

Plaintiff is present.

Defendant is present.

Parties sworn and testified.

Case settled through mediation.

Case dismissed with prejudice as to entire action.

Hearing concluded.

Case Events – CRC Worksheet – Decision Sheet – Parties sign Stipulation and Order Appointing Judge Pro Tem

The decision by the court said the case was dismissed.

Case docket:

Superior Court of California, County of San Mateo
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Case Information

19-SCS-00002 | BORIS ZHALKOVSKY, MD vs. WILLIAM PICKETT

Case Number
19-SCS-00002
Court
Small Claims
File Date
01/02/2019
Case Type
Small Claims $1501 – $5000
Case Status
Closed
Party
Plaintiff
ZHALKOVSKY, BORIS, MD

Defendant
PICKETT, WILLIAM

Cause of Action

File Date
Cause of Action
Type
Filed By
Filed Against

01/02/2019
Plaintiff’s Claim
Action
ZHALKOVSKY, BORIS, MD
PICKETT, WILLIAM
Disposition Events
03/12/2019 Judgment

Judicial Officer
Reyna, Renee C.
Judgment Type
Small Claims Judgment – Uncontested

Comment
Comment (JUDGMENT ORDERED FOR PLAINTIFF AND AGAINST DEFENDANT)

Judgment – Monetary Award
Awarded To:
ZHALKOVSKY, BORIS, MD
Awarded Against:
PICKETT, WILLIAM
Amount
Damages: $2,100.00
Costs: $65.00
Total: $2165.00

Party

Names: ZHALKOVSKY, BORIS, MD
PICKETT, WILLIAM

Events and Hearings

01/02/2019 New Filed Case
01/02/2019 Certified Mail on Plaintiff’s Claim
View Document Certified Mail on Plaintiff’s Claim
01/02/2019 Plaintiff’s Claim
View Document Plaintiff’s Claim
01/02/2019 Cause Of Action
Action
Plaintiff’s Claim
File Date
01/02/2019
01/15/2019 Proof of Service by CERTIFIED MAIL
View Document Proof of Service by CERTIFIED MAIL Signed for by Illegible Hearing Date 3/12/19
Comment
Signed for by Illegible Hearing Date 3/12/19
03/12/2019 Small Claims Hearing
View Document ~CIV Minute Order – Small Claims Hearing 03/12/2019
Judicial Officer
Reyna, Renee C.
Hearing Time
1:30 PM
Result
Held
Parties Present
Plaintiff: ZHALKOVSKY, BORIS, MD
03/12/2019 Decision Sheet
03/12/2019 Matter Taken Under Submission
Judicial Officer
Reyna, Renee C.
Comment
Matter under submission: Review Judicial officer: Reyna
03/20/2019 Small Claims Notice of Entry of Judgment
View Document Small Claims Notice of Entry of Judgment WITH AFFIDAVIT OF MAILING
Comment
WITH AFFIDAVIT OF MAILING

Financial

ZHALKOVSKY, BORIS, MD
Total Financial Assessment
$65.00
Total Payments and Credits
$65.00

1/2/2019
Transaction Assessment

$50.00
1/2/2019
Transaction Assessment

$15.00
1/2/2019
Case Payment
Receipt # 2019-000068-HOJ
ZHALKOVSKY, BORIS, MD
($65.00)
Documents

View Document Certified Mail on Plaintiff’s Claim
View Document Plaintiff’s Claim
View Document Proof of Service by CERTIFIED MAIL Signed for by Illegible Hearing Date 3/12/19
View Document ~CIV Minute Order – Small Claims Hearing 03/12/2019
View Document Small Claims Notice of Entry of Judgment WITH AFFIDAVIT OF MAILING

Filed 3/23/15 Dawson v. Country Club of Rancho Bernardo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KRISTEN DAWSON,

Plaintiff and Appellant,

v.

COUNTRY CLUB OF RANCHO BERNARDO,

Defendant and Respondent.

D064654

(Super. Ct. No. 37-2011-00091828-

CU-OE-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Reversed with directions.

Law Offices of Johanna S. Schiavoni, Johanna S. Schiavoni; Gruenberg Law, Josh D. Gruenberg and Susan M. Swan for Plaintiff and Appellant.

Stutz Artiano Shinoff & Holtz, Jack M. Sleeth, Jr., and Melissa A. Lewis for Defendant and Respondent.

Kristen Dawson, an employee of the Country Club of Rancho Bernardo (the Club), sued the Club and her supervisor, Joe Furlow (together, Defendants), alleging causes of action for sexual harassment under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and intentional infliction of emotional distress. She also sued the Club for failure to prevent harassment, wrongful termination in violation of public policy, and retaliation. The trial court granted Defendants’ motion for summary adjudication of Dawson’s harassment, failure to prevent harassment, and intentional infliction of emotional distress claims. The trial court later granted the Club’s motion for summary judgment of Dawson’s claims for wrongful termination in violation of public policy and retaliation. Dawson appeals the judgment.

We conclude the trial court erred by granting summary adjudication and summary judgment of Dawson’s claims. When viewing the evidence in the light most favorable to Dawson, she has raised triable issues of material fact in connection with each cause of action. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Club hired Dawson as a dining room supervisor in February 2008. She began as an hourly employee, but was quickly promoted to the salaried position of food and beverage manager, overseeing 20 restaurant staff.

In October 2010 the Club hired Furlow as clubhouse manager. He became Dawson’s direct supervisor.

On December 12, 2010, Furlow sent an e-mail from “joe_furlow@yahoo.com” to Dawson’s Club e-mail address that said, “lets get you some golf lessons sometime soon, ok?!” Dawson interpreted this as Furlow offering to have a Club golf pro provide her with some lessons, so she responded on December 14, “I am definitely on board for golf lessons sometime soon!” On December 17, Furlow responded, “OK, happy to give you some anytime, lets figure out a day and maybe we could grab lunch or dinner too? Shoot me your personal e-mail too if thats ok, I don’t want this to be a work thing!” This e-mail “automatically made [Dawson] uncomfortable,” so she did not respond; instead, she discussed it with coworker Don Murders, her boyfriend, and her father.

On December 23, Furlow sent another e-mail from his yahoo.com account to Dawson’s Club address. He suggested meeting at an offsite driving range so that Club members would not distract them. Furlow added, golf “is certainly not . . . an easy game at times, but playing with friends and adding libations can enhance the experience.” Dawson was still uncomfortable, so again she did not respond.

On January 2, 2011, Furlow sent two more e-mails from his yahoo.com account to Dawson’s Club account. In the first, he asked, “Just checking to see if you are up for some golf lessons after work Tuesday?” In the second, he stated (in part), “There is a driving range one exit north of pomerado, we should go there Tuesday, ok? I am staying the night, so if you want, let’s go have some dinner and talk about dinner menu and wine list. Have you been to barrel room?” The e-mails made Dawson uncomfortable because Furlow was her “boss” and she interpreted the overnight reference as “insinuating something.”

Murders was with Dawson when she received the January 2 e-mail. Dawson wanted to write Furlow an e-mail “in a way that would not offend him, if he were to get upset, that [she] didn’t want to do dinner with him or have him teach [her] golf lessons.” Murders helped Dawson draft the following response, which she sent Furlow on January 2: “I want to make our restaurant something that we are both proud of as well. . . . My only concern is that I don’t want to be in a position to give members or staff any reason to make any kind of assumptions if they saw the two of us together off premises. I know it might sound a bit paranoid, but I have seen how fast rumors can spread and unfortunately, it has happened to me in the past where members and/or staff had made false assumptions. This can occur in any business setting, and although as innocent as it may be, some people could perceive it differently which is sad that they would do such a thing. With that being said, I am not willing to take that risk. [¶] . . . I would be completely fine with a group setting to visit different restaurants, etc.”

A few days later, Furlow dropped by Dawson’s office and asked, “Are we okay?” Furlow said he was “concerned” about Dawson’s e-mail and did not “want [her] to think [he] want[ed] to make this a work thing.” Dawson described him as being “a little huffy and puffy about it.” Trying to “calm the situation,” Dawson responded that she thought his ideas were good, but she only wanted to do things in a group setting with other managers. Furlow became defensive. He said, “Well, the club can’t afford to take everyone out to dinner all the time,” and claimed the Club’s board of directors and his wife knew about his plans to take Dawson to other restaurants to taste items.

A few weeks later, Furlow approached Dawson at work and said they needed to talk. They went into Furlow’s office, he shut the door, and said, “We have a problem . . . . My wife found the e-mails . . . . [¶] and she’s really upset and she’s going to contact you and she said she’s going to e-mail you. . . . All I ask is when you receive that e-mail that you delete it and don’t read it and I’ll get this taken care of.” Dawson was “dumbfounded” because she did not think she had done anything wrong. Furlow explained that he had marital problems—his wife had cheated on him and they had “trust issues.” Dawson was uncomfortable discussing Furlow’s personal life with him. She said she would delete any e-mail from his wife, and the conversation ended. Dawson never received an e-mail from Furlow’s wife.

In February, on Dawson’s third employment anniversary, the Club’s board of directors issued her a commendation noting her personal contribution to the Club’s success.

On February 20, a Sunday that Dawson had off from work, Furlow called her on her personal cell phone while she was vacationing in Palm Springs with her roommate, her boyfriend, his sister, and the sister’s husband. Furlow told Dawson he thought they “had a moment”—”I looked at you and you looked at me” and “we had a moment”—in the kitchen at work the previous Friday. Dawson had no idea what Furlow was talking about and told him she did not feel the same. Furlow responded, “if you didn’t feel it, then that’s fine. I just think that you’re a really beautiful girl and that any guy would be lucky to have you. And I’m just going through a rough patch right now, and I don’t know what you want from me.” Dawson told Furlow five or six times, “[A]ll I’m looking for from you is a professional working relationship.” Furlow responded, “Okay,” but then proceeded to tell Dawson he was going to leave his wife because she cheated on him and they had trust issues, that his dad encouraged him to get a divorce, and that he wanted to move to San Diego from Long Beach and bring his kids with him. Dawson got off the phone as quickly as possible. She told her family and friends how much the call bothered her, and that if Furlow kept it up, she would report it to the Club’s human resources (HR) department.

Within weeks, Furlow began making changes around the clubhouse and bar without telling Dawson, even though the changes were within her responsibilities. Furlow hired three new employees without Dawson’s input; bypassed Dawson to meet with her subordinates about changes or concerns, instead of discussing them with Dawson as he had done before; and made changes, like offering a new wine or changing the dining room setup, without notifying Dawson.

On April 11, another of Dawson’s days off, Furlow called her on her personal cell phone to “clear some things up.” Dawson responded that she was at a memorial service and could not talk.

On April 14, Dawson received a voicemail from one of the Club’s wine vendors who was expressing disappointment that he would no longer be working with the Club. Dawson went to Furlow’s office to ask that he let her know of such changes in the future, as wine vendor relationships related to her job duties. Furlow became very aggressive, yelling that he was “outraged” that Dawson would “defend a vendor.” Furlow yelled so loudly that a coworker whose office was near Furlow’s became concerned. Dawson left Furlow’s office very upset.

The following day, April 15, Furlow asked Dawson to come to his office. He whispered to Dawson, “I’m really concerned about your mental health.” He then confronted her with a printout of an e-mail exchange between “kristen-dawson@live.com” and “joe@uptoparstaffing.com” (one of Furlow’s e-mail addresses). The first e-mail was dated April 11 from “joe@uptoparstaffing.com” and read: “Why don’t we talk today via phone.. What time works for you?” The response dated April 14 from “kristen-dawson@live.com” read, “[W]e need to talk…..you are quite the dick. or do you even have one? could be fun, not sure your agenda, kind of a insecure control freak, huh?”

Furlow asked Dawson, “What is this? Do I need to . . . have my attorney present?” Dawson read the e-mail exchange. She had never used the “kristen-dawson@live.com” address and was unfamiliar with the “live.com” domain. Dawson responded, “I did not write this. You know I didn’t do this . . . . Are you really doing this right now?” Furlow replied, “Well, I have a lot more where those came from.” Dawson had Murders and the Club’s HR representative, Melissa Stotz, come to Furlow’s office to witness their conversation. Stotz observed Dawson to be visibly shaken.

Stotz entered Furlow’s office and asked what was happening. Furlow said Dawson had been sending him e-mails, calling him names, and that he would go to the Club’s board. Furlow presented the e-mail to Stotz to read. After reading it, Stotz thought it did not “seem like something [Dawson] would write.” Stotz immediately contacted the Club’s president (Rick Lindsey), and the board’s HR chairman (Bob Walder). Stotz informed Dawson that Walder and Lindsey would come to the Club later that day. Dawson went home to calm down and to retrieve printed copies of the e-mails from Furlow’s yahoo.com account.

Dawson met with Lindsey and Walder later in the day on April 15. She explained everything that had happened between her and Furlow, beginning with the e-mails from his yahoo.com account that began in December and ending with the revelation of the live.com e-mail Furlow showed her.

Furlow gave Walder printouts of more than 30 additional e-mails between Furlow’s three different e-mail accounts—his Club account, “jfurlow39@gmail.com” and “joe@uptoparstaffing.com”—and “kristen-dawson@live.com.” The live.com e-mails began on December 18, 2010 with an e-mail from “Dawson” to Furlow’s Club account asking him to give her golf lessons, adding “I don’t want this to be a work thing . . . . maybe [we can] grab lunch or dinner afterwards?” Furlow responded on December 21, offering to provide lessons after the rain stops. “Dawson” later responded, “Now that the rain has stopped, lets figure out a date soon. I dont want to make this a work obligation either. So, if thats ok, can we keep this non-working? Hope that makes sense. If you want, send me your personal e-mail so we keep it out of that arena.” Furlow responded on December 23 with a response nearly identical to his December 23 e-mail from his yahoo.com account to Dawson’s Club account regarding offsite lessons.

On January 2, 2011, Furlow sent “Dawson” an e-mail from his uptoparstaffing.com e-mail address that is nearly identical to the January 2 e-mail from his yahoo.com account to Dawson’s Club account regarding the offsite driving range and Furlow’s overnight stay. “Dawson” responded on January 8, stating, “Would be great to see you off schedule but while we are working together it doesn’t work for me. So until then, just wanted you to know and keep it status quo.”

On January 23 and 24, Furlow exchanged several e-mails with “Dawson” from his gmail.com account. In them, Furlow confides in “Dawson” about his unhappy marriage and his wife’s infidelity. Apparently in response to “Dawson’s” suggestion that the two of them take a trip, Furlow wrote, “I dont know what a dinner or drink after hours would lead to, but I am curious about it to be honest. I understand your reasonings to go far far away, but how far is far far away Oceanside, Downtown SD, Carlsbad or Alaska or Hawaii? Just kidding.” Furlow also wrote, “the emails we have shared are both dangerous and more dangerous.”

“Dawson” responded on January 23 by thanking the “Tough Ass” for “opening up” about his problems and by consoling him. “She” also clarified that by “far away” she meant traveling to a desert golf course for an overnight stay with two other coworkers, but suggesting that if “she” and Furlow “had close or attached rooms and a few drinks after meetings, that might be nice.” The e-mail was signed “Kristen xo.”

Furlow responded on January 24 by opening up further, writing seven additional paragraphs about his marital situation. He also wrote, “I think you and I need to go have a drink! I would at least like to try to have a conversation with you (away from work) and see what happens. If there is a spark, they we can deal with that. However, if there is not a spark (or one of us does not get a spark), no harm no foul and we just work together. I enjoy working with you and I don’t want to try to make something out of anything if nothing is there. Lets go have a drink just you and I and take it from there. No trips, no overnight stays, let’s go have an uncomfortable drink.”

“Dawson” responded on January 24 by providing advice about infidelity, therapy, and children. She also wrote, “I’d love to get to know you better and think you could do better and make this work for you. You are what many of us are looking for and I’d hate to see you wait until you are 50 to figure that out. So, let’s keep that drink on hold until you’ve had time to think and reply back, OK? [¶] xxxxoooo Kristen.”

On March 22, “Dawson” e-mailed Furlow asking if they could meet offsite, repeatedly calling him a “hardass,” and concluding “must be so much fun being miserable.”

On March 24, “Dawson” sent the following e-mail to Furlow’s uptoparstaffing.com and gmail.com accounts: “Joe—i wanted to check and see if i shared your e-mail to me about your whole marriage and inviting me to a drink and told our board how we did more after a drink and that as my manager you used your position and i fealt sexually exploited what you might say. you know i was vulnerable and only trying to win the approval of the new boss, right? i know when i mentioned something to Ed K. he was interested. maybe i should share this with you wife too? she seemed to nail me pretty quick, wonder what she’d do if i told her how we had sex and how quick you went after me? you have made me feel badly and all i wanted was to do a good job.”

On April 3, “Dawson” forwarded Furlow “their” January 23 and 24 e-mail exchanges with this new message: “Wonder what the board or SD labor relations or your wife would think?? You are an unhappy guy, you could be very happy if you wanted though.”

On April 6, “Dawson” e-mailed Furlow’s uptoparstaffing.com address the following message: “going down.” Furlow responded, “What? What are you talking about? Going down what?” “Dawson” then replied, “use your imagination!” “She” also asked Furlow to call “her” on “her” cell phone.

On April 9, “Dawson” e-mailed Furlow at his uptoparstaffing.com account after 10 p.m., asking “You up?” Over one hour later, “Dawson” e-mailed again to ask, “When are we going to get that drink? Lets just do it, who cares?”

On April 11 and 12, “Dawson” and Furlow exchanged e-mails trying to arrange a phone call.

On April 13, Furlow forwarded to his Club e-mail address several of the e-mail chains between “kristen-dawson@live.com” and his gmail.com and uptoparstaffing.com accounts.

The e-mail exchanges between “kristen-dawson@live.com” and Furlow ended with the April 14 “dick” e-mail that Furlow presented to Dawson on April 15.

Walder showed Dawson the live.com e-mails. She was shocked and deeply disturbed by the e-mails; when she read the last one, she broke down crying. Dawson denied sending the e-mails, said she had never seen them before, and suspected Furlow had written both sides of the conversations because “it was very apparent it was his language.” She surmised he had done so because “he knew that [his prior] conduct was wrong so he was trying to protect himself by creating an account where [Dawson] sent him stuff in order to make [her] look a part of it.” After Dawson read the live.com e-mails, she told Walder she felt she was working in a hostile work environment.

Dawson asked Walder and Lindsey to investigate the situation and determine who sent the e-mails. She also asked, while the investigation was pending, that she have less direct communication with Furlow. Walder accommodated Dawson’s request by having her and Furlow each report to separate board members who then conferred with one another. Fearing someone was out to get her, Dawson asked to park in the members’ lot at the Club so she would not have to walk to the isolated employee parking lot. Walder allowed this.

Walder began investigating the live.com e-mails. Dawson volunteered access to her personal computer, e-mail accounts, and her boyfriend’s personal computer. She also established to Walder’s satisfaction that she could not have sent the April 14 “dick” e-mail—she was dining at a restaurant with her boyfriend’s family when the e-mail was sent and Walder confirmed with the boyfriend’s father and two restaurant servers that Dawson did not send any e-mails during that time. Walder later told Dawson he also learned live.com e-mails can not be sent from mobile devices.

Walder told Dawson “he believed 100 percent” that she did not write the live.com e-mails. In addition to confirming she could not have sent the April 14 e-mail, Walder concluded there was nothing consistent between the tone and format of Dawson’s work e-mails and the live.com e-mails, and it was apparent to Walder that Dawson had not seen the e-mails before he showed them to her.

Walder told Furlow, “I will need to look through your computers[,] both personal and professional, along with your BlackBerry.” Furlow responded, “I have a great deal of personal information on that.” Furlow agreed to “bring them in”—presumably referring to his personal computers—but he never did. The appellate record does not reveal whether Furlow ever made his work computer or e-mail available. However, Furlow did confirm that when he sent e-mails to Dawson from his work computer he had to select between her Club account and “kristen-dawson@live.com.”

Dawson insisted the Club investigate Furlow’s e-mail and became “exasperated” when Walder did not require Furlow to make his computers available for examination. Walder considered “inappropriate” Dawson’s efforts to “set deadlines on [his] schedule of when” to examine Furlow’s computers “[b]ecause it wasn’t up to her as to what direction th[e] investigation was going.”

Ultimately, Walder was unable to determine who sent the live.com e-mails, but concluded that fact was “immaterial to the investigation.” Walder explained in an April 26, 2011 memorandum regarding his investigation: “I . . . have asked [Furlow] for access to his personal [e-mail] twice. Each time he has said that he would provide access, also claiming that there is confidential information in the [e-mail]. [Furlow] has not given me access at this time. [¶] Considering that [Furlow] has not granted access to his [e-mail] addresses, I have to then conclude that the [e-mails] are nothing more than hearsay. We have words on paper but nothing to prove that the [e-mails] are factual. I also have to conclude that without the [e-mails], the situation is reduced to poor management.”

On April 27, Dawson met with Walder, Lindsey and Club president Ron Smith. They told Dawson the investigation was finished; it was inconclusive as to who sent the live.com e-mails; the Club could not reprimand Furlow without proof he sent the e-mails; and, even if he sent them, it was from his personal e-mail and not his work address. Dawson asked about continuing to investigate the source of the e-mails, but Walder responded that “if [Furlow] doesn’t hand [his computers] over, there’s not much [the Club] can do.” The investigation ended and Dawson and Furlow continued working together. Furlow was reprimanded for his handling of the wine vendor incident, but not for sexual harassment.

Discouraged with the outcome of the Club’s investigation, Dawson retained legal counsel and filed a lawsuit against the Club and Furlow on May 24, 2011, alleging sexual harassment (against both), failure to prevent harassment (against the Club), and intentional infliction of emotional distress (against both). Walder received a draft of the complaint. The day he received it, Walder had intended to offer Dawson a new position at the Club: catering and special events manager. The following day, Walder told Dawson, “I was going to offer you this position, but then I received your lawsuit.”

Walder ultimately offered Dawson the new position. He initially referred to it as a promotion, but later acknowledged it was not. Furlow called it a “lateral” move. Dawson considered it a “step down” because she would no longer oversee the food and beverage department or manage the 20-person restaurant staff, but rather, would be in a special event sales role. The new position included no pay raise and required Dawson to have the same amount of communication, if not more, with Furlow. Dawson told coworker Murders she felt the Club was retaliating against her by offering the new position.

Dawson felt “Walder’s conduct towards [her] took a drastic turn” and that her “days were numbered.” Walder viewed Dawson’s lawsuit as an act of retaliation and feared “she would be looking for anything possible in an attempt to try to hurt the [C]lub.” He offered to hire an investigator to look into Furlow’s e-mails if she dropped the lawsuit. In a June 1 e-mail to Dawson’s attorney, Walder wrote—for the first time—that Dawson had “performance” issues. Walder would not answer Dawson’s questions about the purported performance issues or Club vacation policy, instead requesting that Dawson decide promptly whether she would accept the new catering role.

Walder testified in his deposition that Dawson was “incompetent” 75 percent of the time he worked with her, and that her performance was merely “satisfactory” the remaining 25 percent of the time. He claimed that Dawson’s incompetence included failing to return phone calls, being unable to quote him certain prices, and lacking planning skills. Although Walder said Dawson was incompetent in planning a meeting for his company, he admitted he later “raved to [her] about how great the event was.”

Walder also testified in his deposition that he changed his mind about Dawson’s authorship of the live.com e-mails based on an e-mail Furlow allegedly received from the slightly different “kristen_dawson@live.com” account during the course of the litigation. Walder did not confirm that Dawson sent the e-mail.

On June 3, Dawson and Walder exchanged several e-mails about some of the terms of the new catering position. Walder told Dawson he needed her decision soon or they would find someone else for the role.

On June 8, Furlow notified Dawson via e-mail that another employee would take over her role of scheduling bartender and cocktail server shifts. Dawson e-mailed Walder the following day to accept the catering position because she found “it apparent that [her] responsibilities are slowly being taken away anyway.”

On June 10, Walder recommended to the Club’s board that the Club terminate Dawson’s employment. The board followed Walder’s recommendation and voted to terminate Dawson. Walder prepared a termination letter, and he and Stotz met with Dawson to notify her of her termination, which was effective immediately. Walder’s letter cited the following bases for Dawson’s termination: (1) her submitting to the accounting department a personnel action request (PAR) that sought to retroactively reduce an hourly employee’s pay rate without first notifying him; (2) her “previous performance issues,” including her responsiveness to customers; and (3) poor management of a Memorial Day event.

Dawson disagreed with Walder’s cited bases. Regarding the PAR, Dawson explained that when she hired Greg LeChance as a server, she told him that he would start with a training pay rate of $8.50 per hour, but he would not be eligible for tips; when his training was complete, after about two weeks, his hourly pay would decrease to $8.00 per hour but he would be eligible to share in tips. Someone informed Dawson that LeChance had completed his training and was participating in tips, but his hourly pay rate had not been reduced. Dawson completed a PAR requesting a 50-cent per-hour pay reduction for the current pay period and submitted the PAR to accounting for approval by Furlow as Club manager. Accounting caught the retroactive discrepancy and the PAR was never implemented.

As for her performance issues, Dawson disputed Walder’s assertion that he had verbally counseled her on several occasions. The only occasion Dawson recalled was Walder commenting on his secretary and Dawson playing phone tag while coordinating the menu for Walder’s corporate event at the Club. But even then, Walder did not communicate to Dawson that his secretary was frustrated with Dawson’s responsiveness. Walder understood that as a Club member and board member he was able to complain to HR about Club employees, but he never did so regarding Dawson. He apparently mentioned Dawson’s responsiveness to Furlow in December 2010 or January 2011, but Furlow considered Walder’s grievances to be “miniscule” issues that did not “merit actual documentation.” Walder acknowledged Dawson had never been disciplined in writing.

Regarding the Memorial Day event, Dawson cited an e-mail from Furlow in which he wrote to Dawson, “No need to be here Monday, Bea and I will cover the Memorial Day Holiday Tournament.”

Stotz supervised Dawson while she gathered her personal belongings and escorted her to her car. Stotz told Dawson she “felt like [Dawson’s termination] was wrong.”

Dawson amended her complaint to add a claim against the Club for wrongful termination in violation of public policy.

On September 25, 2012, the trial court granted the Club’s motion for summary adjudication of Dawson’s claims for sexual harassment, failure to prevent harassment, and intentional infliction of emotional distress. The trial court viewed the evidence supporting Dawson’s harassment claim “as falling into three separate categories”: (1) Furlow’s conduct before April 15, (2) Furlow’s showing the live.com e-mail to Dawson on April 15, and (3) Walder’s showing Dawson the remaining 30 live.com e-mails. The trial court rejected Dawson’s retaliation arguments because retaliation “was unpled in [the harassment] cause of action” and “is not an element of a cause of action for sexual harassment.” Citing Dawson’s testimony that she did not feel sexually harassed until Walder showed her the additional live.com e-mails during the course of the investigation she requested, the trial court found Dawson did not meet “her burden of showing that the additional e-mails shown to her during [the Club’s] investigation represents sexually harassing conduct or that the conduct in this case was severe or pervasive.” Based on the same reasoning and findings, the trial court found that Dawson’s claims for failure to prevent harassment and intentional infliction of emotional distress also failed. Because the trial court had summarily adjudicated all claims in which Furlow was a named defendant, the court entered judgment in his favor on November 8, 2012.

The trial court granted Dawson leave to amend her complaint to add a cause of action for retaliation in violation of FEHA. The Club then moved for summary judgment on Dawson’s remaining wrongful termination and retaliation claims. The Club conceded Dawson had made a prima facie showing of retaliation and, thus, the Club accepted the initial burden of establishing it had a legitimate, nonretaliatory reason for terminating Dawson. The trial court accepted the Club’s argument that Dawson’s attempt to retroactively reduce LeChance’s pay constituted a legitimate reason for termination, rejected Dawson’s contention that it was mere pretext, and granted the Club’s motion. The trial court entered judgment in favor of the Club on June 3, 2013.

On August 7, 2013, Dawson filed a notice of appeal purporting to appeal the November 2012 judgment in favor of Furlow and the June 2013 judgment in favor of the Club. Furlow moved unopposed to dismiss as untimely the appeal as to his November 2012 judgment. We granted his motion. Therefore, this appeal concerns only the June 2013 judgment in favor of the Club.

DISCUSSION

Dawson contends the trial court erred by granting the Club’s summary adjudication motion because the court misapplied sexual harassment law and did not view the evidence in the light most favorable to Dawson, which would have revealed triable issues of fact. She contends the trial court also erred by granting the Club’s summary judgment motion because there is a triable issue of fact regarding whether the Club articulated a legitimate reason for terminating her.

On appeal from the entry of a summary judgment, we apply the same standard that was applicable in the trial court, i.e., we independently review the record to determine whether there are triable issues of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470 (Miller) [reversing grant of summary judgment in a sexual harassment and retaliation case where the “Court of Appeal failed to draw [reasonable inferences in favor of the nonmoving party] and took too narrow a view of the surrounding circumstances”].)

I. DEFENDANTS’ SUMMARY ADJUDICATION MOTION

We begin by examining the trial court’s order granting summary adjudication of Dawson’s claims for sexual harassment, failure to prevent sexual harassment, and intentional infliction of emotional distress.

A. Legal Framework

FEHA “recognize[s] two theories of liability for sexual harassment claims. [Citations.] ‘. . . quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances . . . [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.’ ” (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149.) Dawson alleged hostile work environment sexual harassment.

In construing FEHA, our high court has held that the hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe. (Miller, supra, 36 Cal.4th at p. 462.) To prevail, an employee must show that the harassing conduct was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” (Ibid.) “To be pervasive, the sexually harassing conduct must consist of ‘more than a few isolated incidents.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1048.) If the alleged harassment was not pervasive, the employee must show that it was “severe in the extreme.” (Herberg v. California Institute of the Arts, supra, 101 Cal.App.4th at p. 151.)

“To be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive.’ ” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284.) “That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” (Ibid.)

Under FEHA, the existence of a hostile work environment depends upon the totality of the circumstances. (Miller, supra, 36 Cal.4th at p. 462.) ” ‘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.’ ” (Ibid.) “The United States Supreme Court has warned that the evidence in a hostile environment sexual harassment case should not be viewed too narrowly.” (Ibid.) ” ‘[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” [Citation.] . . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.’ ” (Ibid., quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81–82.)

B. Analysis

1. Sexual harassment

Dawson contends the trial court misapplied the law by not considering evidence of Furlow’s and Walder’s retaliatory conduct in connection with her sexual harassment claim and by not considering the totality of the circumstances. We agree. When viewed in the light most favorable to Dawson, the totality of the circumstances—including Furlow’s (but not Walder’s) retaliatory conduct—establish that triable issues of fact exist regarding Dawson’s subjective belief that she was sexually harassed and whether that belief was objectively reasonable.

a. Furlow’s (but not Walder’s) alleged retaliation is relevant to Dawson’s

sexual harassment claim

Regarding the trial court’s “reject[ion]” of Dawson’s retaliation theory as irrelevant to her sexual harassment claim, Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994 (Birschtein) is instructive. There, plaintiff Michelle Birschtein worked on an assembly line in an auto manufacturing plant, which required her to work in a fixed location as forklifts delivered parts and materials to the assembly line. (Id. at p. 997.) Forklift operator George Bonillia asked Birschtein on a date three or four times, but Birschstein declined each time and told him she did not want to go out with him. (Ibid.) Bonillia told Birschtein he wanted to ” ‘eat her,’ ” which upset Birschtein and prompted her to ask Bonillia what he meant. (Ibid.) Bonillia replied, ” ‘I want to eat you all over.’ ” (Ibid.) Birschtein yelled at Bonillia to leave, which he did after sitting on his forklift for a while. (Id. at pp. 997-998.) Two or three days later, Bonillia again approached Birschtein and told her he was having fantasies about bathing her in a tub surrounded by candles and carrying her to a bed covered with rose petals. (Id. at p. 998.) Birschtein yelled at Bonillia to leave, which he did after sitting on his forklift for another minute. (Ibid.) Birschtein complained to her foreman and began to carry mace to work. (Ibid.) After her complaint, Bonillia never spoke to Birschtein again. (Ibid.) But he did drive his forklift near her station five to 10 times each day and stare at her for five to 10 minutes each time. (Ibid.) Birschtein complained about Bonillia’s staring, which then decreased to two or three times per day for five to ten seconds at a time. (Ibid.) Bonillia’s stares were not sexual, they were upset. (Id. at pp. 998-999.) Bonillia’s only post-complaint sexual act was one occasion when he grabbed his crotch while he drove his forklift by Birschtein’s station, staring at her. (Id. at p. 999.) Birschtein’s employer investigated Bonillia’s conduct, but took no disciplinary or corrective action because the investigator ” ‘didn’t feel that [Bonillia’s] actions warranted it.’ ” (Ibid.) Birschtein sued for hostile work environment sexual harassment, and the trial court granted summary judgment for her employer. (Id. at pp. 999-1000.)

The Court of Appeal reversed. As relevant here, the court concluded Bonillia’s nonsexual, retaliatory staring could still constitute sexual harassment. (Birschtein, supra, 92 Cal.App.4th at p.1001, citing Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345-346 [” ‘[S]exual harassment does not necessarily involve sexual conduct.’ “].) As the court explained, “What began as Bonillia’s overt acts of sexual harassment (asking for dates, the ‘eat you’ remarks, his specifically sexual bathing fantasies) were later transmuted by plaintiff’s reaction (her complaints to management about the offensive conduct) into an allegedly daily series of retaliatory acts—the prolonged campaign of staring at plaintiff—acts that were directly related to, indeed assertedly grew out of, the antecedent unlawful harassment.” (Id. at p. 1002.) The court thus concluded Birschtein’s evidence “was sufficient to raise a triable issue of material fact, i.e., whether Bonillia’s apparent retaliatory acts were sufficiently allied with the prior acts of harassment to constitute a continuing course of unlawful conduct.” (Ibid.)

Similarly, Dawson presented evidence that after she made clear during the Palm Springs phone call that she was only interested in a professional relationship with Furlow, his attitude toward her changed from one of romantic pursuit to retaliation. He cut Dawson out of the decision-making loop for job-related decisions and secretly met with her subordinates. This culminated in the April 14 incident regarding Furlow’s replacement of a wine vendor during which he yelled loudly at Dawson. The next day, Furlow questioned Dawson’s mental health, showed her the April 14 “dick” e-mail, and told Dawson, “I have a lot more where those came from.’ ” After Dawson complained to HR, Furlow continued to keep her in the dark on management decisions and reassigned some of her duties. Considering this evidence in the light most favorable to Dawson, we conclude Furlow’s “apparent retaliatory acts were sufficiently allied with the prior acts of harassment to constitute a continuing course of unlawful conduct” (Birschtein, supra, 92 Cal.App.4th at p. 1002, italics added) such that the trial court should have considered the retaliatory acts in connection with Dawson’s sexual harassment claim.

Dawson has not convinced us that Walder’s alleged retaliatory acts are relevant to her sexual harassment claim. Whereas the nonsexual retaliation in Birschtein was a “transmutat[ion]” of Bonillia’s own previous sexual harassment (Birschtein, supra, 92 Cal.App.4th at p. 1002), Dawson has not directed us to evidence in the record that shows Walder’s alleged acts of retaliation “were sufficiently allied with [Furlow’s alleged] prior acts of harassment” (ibid.), or were directed at Dawson “because of [her] sex” (Miller, supra, 36 Cal.4th at p. 462)—as opposed to her engagement in the protected activity of reporting or suing for alleged sexual harassment—such that the trial court should have considered them in connection with Dawson’s sexual harassment claim.

Dawson argues her case is like Miller, supra, 36 Cal.4th at page 466, which she characterizes as the Supreme Court having found evidence of a hostile work environment based, in part, on a “supervisor’s refusal to intervene in abusive conduct against the plaintiff by another employee, and the supervisor’s retaliation against the plaintiff . . . after she cooperated with an internal affairs investigation into the supervisor’s conduct.” (Underscoring omitted.) However, Miller is readily distinguishable because the retaliating supervisor was having an affair with (among others) the employee who was abusive to the plaintiff and it was that affair (together with the others) that contributed to the hostile environment of which the plaintiff complained. (Id. at pp. 466-468.) There are no facts similarly linking Walder’s alleged retaliatory conduct to any earlier harassment in which Walder was involved.

Therefore, we conclude the trial court erred by not considering evidence of Furlow’s alleged retaliatory conduct in connection with Dawson’s claim for sexual harassment. Thus, we will consider that evidence among the totality of the circumstances supporting Dawson’s sexual harassment claim.

b. Whether Dawson subjectively felt harassed is a triable issue of fact

The Club argued below, as it does now, that Dawson testified she did not subjectively believe she was being sexually harassed until Walder showed her the live.com e-mails on April 15. The trial court agreed and appears to have considered only whether being shown the live.com e-mails during the course of the investigation could constitute sexual harassment. We conclude the trial court erred by viewing the evidence too narrowly. (Miller, supra, 36 Cal.4th at p. 462; Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. 75, 81–82.)

In support of its argument, the Club asserts “Dawson testified that she did not find any of the conduct spanning the two months after the invitation for golf lessons and dinner, leading up to the April incident with the wine vendor, to be sexually harassing.” This assertion is unsupported for at least two reasons.

First, the Club’s record citation does not support the conclusion. Dawson was asked in deposition, “But in between those two dates had anything happened that you thought was sexual harassment?” However, the “two dates” were not the December “invitation for golf lessons and dinner” and the “April incident with the wine vendor,” as the Club represents; rather, they were “the February 20 [Palm Springs] phone call and the April 11 phone call” to “clear some things up” when Dawson was at a memorial service.

Second, the Club’s argument ignores other portions of Dawson’s deposition testimony where she cites conduct by Furlow prior to the revelation of the live.com e-mails that she considered “instance[s] of sexual harassment” by Furlow. For example, Dawson testified she considered the January conversation when Furlow told her his “wife found the e-mails” to be an “instance of sexual harassment” that made her “uncomfortable.” She also testified she considered Furlow’s February 20 Palm Springs phone call an “instance of sexual harassment” that made her uncomfortable. And she testified she considered Furlow’s April 11 memorial service call to “clear some things up” an “instance of sexual harassment.” In addition, although she did not characterize it as an instance of sexual harassment, Dawson testified Furlow’s January 2 “staying the night” e-mail was “offensive” and made her “uncomfortable.” This evidence is sufficient to create a triable issue of fact regarding whether Dawson subjectively felt that she was sexually harassed.

c. Whether Dawson objectively felt harassed is a triable issue of fact

The trial court’s finding that Dawson did not objectively feel harassed appears to have also been based on the court’s acceptance of the Club’s assertion that Dawson did not subjectively feel sexually harassed until Walder showed her the live.com e-mails. For the same reasons discussed above regarding Dawson’s subjective belief, the trial court’s finding is erroneous in connection with Dawson’s objective belief.

Considering the “totality of the circumstances” (Miller, supra, 36 Cal.4th at p. 462), we conclude Dawson opposed the Club’s motion with sufficient evidence to reach trial. Dawson testified she experienced several “instance[s] of sexual harassment” by Furlow before she ever saw one live.com e-mail. She testified the revelation and her reading of the live.com e-mail’s further constituted sexual harassment. And she presented evidence that her rebuffing of Furlow’s advances transmuted his harassing conduct from sexual to retaliatory. (Birschtein, supra, 92 Cal.App.4th at p. 1002.) This is sufficient to create a triable issue of fact.

Consistent with its theory that Dawson admitted she did not feel sexually harassed until Walder presented the live.com e-mails, the Club argues that Walder showing Dawson the e-mails cannot constitute sexual harassment because it was not done “because of [her] sex” (Miller, supra, 36 Cal.4th at p. 462). In other words, Walder did not show Dawson the live.com e-mails to sexually harass her, but rather, to investigate her claim of sexual harassment. We are not persuaded that Walder’s presentation of the live.com e-mails to Dawson during the investigation precludes a finding that Furlow sexually harassed her.

Dawson presented evidence from which a jury reasonably could conclude Furlow wrote the live.com e-mails with the intent that Dawson and others would see them. Regarding authorship, (1) Furlow possessed the e-mails; (2) he sent virtually identical e-mails to Dawson’s Club account and the live.com account without ever questioning the need to repeat himself verbatim in separate e-mail chains; (3) similarly, he never questioned the parallel e-mail chains about golf lessons—the first started by him on December 12, and the second started by “Dawson” on the live.com account on December 18; and (4) Furlow never let the Club examine his computer. The Club can, of course, argue at trial that Furlow is not the author of the live.com e-mails.

As for Furlow’s intent that Dawson see the e-mails, Dawson explained it well in her deposition. When asked why she thought it was sexually harassing conduct by Furlow for Walder to show her the live.com e-mails during an investigation that she wanted done, Dawson responded, “Because he gave them to them. I mean, he gave them the e-mails. So it’s still – just because [Furlow] didn’t give them to me directly, he still put it out there for people to see. That’s still sexual harassment.” Put differently, a jury could reasonably conclude that Furlow drafted the e-mails with the intent that he or someone else would ultimately show them to Dawson and other coworkers to give the false impression that she was voluntarily participating in the conduct about which she would later complain.

The Club also contends Dawson could not have been sexually harassed by the live.com e-mails because she only briefly viewed a few of them. While Dawson testified she could not remember exactly how many of the e-mails she read, Walder documented it in detail in his investigation notes: “I presented the e-mails that [Furlow] had given me one at a time to [Dawson]. I observed her to read each one individually.”

The Club attempts to downplay the severity of the live.com e-mails, writing, “[a]t their worst, kristen-dawson@live.com makes a joke about ‘going down’ and calls Furlow a ‘tough ass’ and a ‘dick,’ but these are more insults than sexually suggestive.” We conclude a jury could disagree with the Club’s characterization of the e-mails. Indeed, it appears Walder did; in his deposition, he gave the following “evaluation” of the live.com e-mails: “From my observation, we have a 30-something-year-old female and a 30-something-year-old male that may have had some sort of a sexual attraction between each other. The e-mails that came from the female were much more inappropriate than the e-mails that came from the male. Do I consider that creepy? If she’s trying to get laid, it is what it is.” In addition, nothing in the record suggests the live.com e-mail about “going down” was any more “a joke” (as the Club contends) than Bonillia’s statement in Birschtein that he wanted to ” ‘eat [Birschtein],’ ” and ” ‘eat [Birschtein] all over.’ ” (Birschtein, supra, 92 Cal.App.4th at p. 997.) Further, there is abundant additional “sexually suggestive” content in the live.com e-mails, such as “Dawson’s” suggestion of “attached [hotel] rooms”; “her” threat to tell the Club’s board “she” felt “sexually exploited” by Furlow; “her” threat to tell Furlow’s wife “how we had sex and how quick you went after me”; and her reference to Furlow’s “dick.”

Aside from the specific content of the live.com e-mails, a jury could consider Furlow’s alleged concoction of a virtual “Dawson” who threatens to blackmail Furlow and who others perceive as “inappropriate” and “trying to get laid” as contributing to a hostile work environment. Indeed, Dawson testified it was not just her reading the e-mails that she felt was sexually harassing but also learning “the fact that the e-mails existed and were about [me]. [¶] . . . [¶] It was—to read these e-mails that were not me that someone else had written, and I think the sexually explicit manner is sexual harassment.”

In sum, considering the totality of the evidence in the light most favorable to Dawson, we conclude she opposed the Club’s motion for summary adjudication as to her sexual harassment claim with “evidence of ‘ “sufficiently severe or pervasive” ‘ conduct that ‘ ” ‘alter[ed] the conditions of [her] employment’ ” ‘ such that a jury reasonably could conclude that the conduct created a work environment that qualifies as hostile or abusive to employees because of their gender.” (Miller, supra, 36 Cal.4th at p. 468.) Consequently, the trial court erred by summarily adjudicating the claim in the Club’s favor.

2. Failure to prevent harassment

The trial court found Dawson’s claim for failure to prevent harassment failed “[f]or the same reasons” as her sexual harassment claim. Based on our conclusion that the trial court erred by summarily adjudicating Dawson’s sexual harassment claim, we likewise conclude the trial court erred by summarily adjudicating her claim for failure to prevent harassment.

3. Intentional infliction of emotional distress

Similarly, the trial court found Dawson’s claim for intentional infliction of emotional distress failed “based on the [sexual harassment] findings.” For the reasons just discussed, we conclude the trial court also erred by summarily adjudicating Dawson’s intentional infliction of emotional distress claim.

II. THE CLUB’S SUMMARY JUDGMENT MOTION

Dawson contends the trial court erred by granting the Club’s summary judgment motion aimed at her claims under FEHA for retaliation and wrongful termination in violation of public policy. She contends there are triable issues of fact regarding the legitimacy of the Club’s stated bases for her termination. We agree.

A. Legal Framework

In relevant part, FEHA makes it unlawful “[f]or any employer . . . to discharge . . . or otherwise discriminate against any person because the person has opposed any practices forbidden under this part . . . .” (§ 12940, subd. (h).) To state a claim of retaliation under FEHA, a plaintiff must show: (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)

“California has adopted the three-stage burden-shifting test established by the United States Supreme Court” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792) and often referred to as the McDonnell Douglas presumption. This approach requires the plaintiff “to establish a prima facie case of [an unlawful employment practice]. . . . [¶] If the plaintiff meets this burden, ‘ ” ‘the burden shifts to the defendant to [articulate a] legitimate nondiscriminatory reason for its employment decision. . . .’ . . .” ‘ . . . [¶] . . . [I]f the defendant presents evidence showing a legitimate, nondiscriminatory reason, the burden again shifts to the plaintiff to establish the defendant intentionally [engaged in an unlawful employment practice] against him or her. [Citation.] The plaintiff may satisfy this burden by proving the legitimate reasons offered by the defendant were false, creating an inference that those reasons served as a pretext for [the unlawful employment practice].” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.)

“A defendant’s summary judgment motion ‘ “slightly modifies the order of these . . . showings.” ‘ [Citation.] Consequently, the [defendant] ha[s] the initial burden to either (1) negate an essential element of [the plaintiff’s] prima facie case [citation] or (2) establish a legitimate, nondiscriminatory reason for [the adverse action]. [¶] ‘[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee . . . must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in [an unlawful employment practice].’ ” (Wills v. Superior Court, supra, 195 Cal.App.4th at p. 160.)

“In discrimination cases, proof of the employer’s reasons for an adverse action often depends on inferences rather than on direct evidence. . . . [E]ven though we may expect a plaintiff to rely on inferences rather than direct evidence to create a factual dispute on the question of motive, a material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant’s proffered explanation.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Also ” ‘[s]peculation cannot be regarded as substantial responsive evidence.’ [Citation.] In order to raise an issue as to the employer’s credibility, the employee must set forth specific facts demonstrating ‘ “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’ ” ‘ ” (Ibid., italics omitted.)

B. Analysis

1. Retaliation

The parties agree that Dawson stated a prima facie case for retaliation—she took the protected act of complaining about sexual harassment and filing a sexual harassment lawsuit and was terminated shortly thereafter. Our starting point, then, is assessing whether the Club met its burden of identifying a legitimate reason for terminating Dawson.

“Legitimate reasons” in this context are reasons that are “facially unrelated” to prohibited retaliation, and which, if true, would thus preclude a finding of retaliation. (Guz, supra, 24 Cal.4th at p. 358.) The employer’s termination decision need not be correct; rather, the employer need only prove it had an honest, good faith belief that termination was warranted based on the facts as it understood them at the time. (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1157.) However, “in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.” (Guz, supra, 24 Cal.4th at p. 363.) The Club’s articulated reasons—Dawson’s attempt to reduce LeChance’s wages, performance issues, and poor management of the Memorial Day event—if true, are “facially unrelated” to Dawson’s sexual harassment complaints and lawsuit. Thus, the Club has met its burden.

The Club having met its burden, the McDonnell Douglas presumption “disappears” and Dawson “bears the burden of persuasion with respect to all elements of the cause of action, including the existence and causal role of . . . retaliatory animus.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou).) Dawson can meet this burden by persuading the court that a retaliatory reason more likely motivated her termination or by showing that the Club’s proffered explanation is “‘unworthy of credence.'” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 664.) The court “can take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer’s actions, or have instead been asserted to mask a more sinister reality.” (Mamou, supra, 165 Cal.App.4th at p. 715.)

We will dispose of the Club’s performance-related justifications because the trial court agreed with Dawson “that a triable issue as to pretext would exist if the only bases offered for Plaintiff’s termination were poor performance issues . . . .” Dawson adduced evidence showing she was never counseled about her performance; she never received any written disciplinary actions or negative performance feedback; although after Dawson’s termination Walder characterized her as “incompetent,” he “raved” about her performance after his corporate event at the Club; Dawson received a commendation from the Club’s board, signed by Walder, noting her personal contribution to the Club’s success, just months before her termination; the first mention of any performance-related issues was in a June 1 e-mail from Walder to Dawson’s counsel, sent one week after she filed her lawsuit; despite her supposed performance issues, the Club offered Dawson a new role that Walder initially characterized as a promotion; Walder told Dawson, ” ‘I was going to offer you this position, but then I received your lawsuit’ “; and Dawson produced an e-mail from Furlow giving her Memorial Day off and indicating he and another coworker would cover the event that day. This evidence is more than sufficient to create a triable issue of fact regarding whether Dawson’s termination for performance-related issues was mere pretext.

Dawson focuses primarily on the wage-reduction issue, contending she opposed the Club’s summary judgment motion with sufficient evidence to show the Club’s purported reliance on the wage-reduction issue is ” ‘unworthy of credence.’ ” (Clark v. Claremont University Center, supra, 6 Cal.App.4th at p. 664.) The Club, quoting the California Department of Industrial Relations’ website, argues ” ‘[d]ecreases in wage rates can only be made prospectively and not retroactively where work was performed and earned under a specified rate.’ ” However, Dawson testified in deposition that she notified LeChance in advance that his pay rate would decrease by 50 cents per hour after he began participating in the tip pool. Walder confirmed with LeChance that Dawson had done so. Dawson also testified about her understanding that the PAR was merely a recommendation that would not take effect until approved by her manager, as evidenced by two approval signature lines on the PAR form. Walder called this explanation a “falsity,” even though he thought the form had only one signature line. All of this casts some doubt on the correctness of the Club’s purported basis for terminating Dawson, but the Club did not have to be correct—it only had to have an honest, good faith belief that it was correct. (Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1157.) As we will now discuss, Dawson cites evidence that creates a triable issue of fact regarding the honesty and good faith with which the Club—namely Walder—held that belief.

An examination of Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95 (Reeves) will put Dawson’s evidence in perspective. Reeves was a grocery store employee who complained to his store manager that female coworkers were being sexually harassed. (Id. at p. 100.) The store manager “seemed resentful and sought to ‘trivialize’ the complaints.” (Ibid.) Reeves was later accused of pushing a female coworker so he could reenter the store after business hours (his shift had just ended and he urgently needed to use the bathroom). (Id. at pp. 101-102.) The store manager referred the pushing incident to store security for an investigation, knowing that all his prior referrals to security had resulted in terminations. (Id. at p. 117.) Security conducted its investigation and recommended Reeves’s termination to a district manager who was otherwise uninvolved in the incident or investigation. (Id. at p. 104.) The district manager terminated Reeves based on a 15- to 20-minute conversation with the investigator. (Id. at pp. 104-105.) Reeves sued for retaliation under FEHA, alleging he was terminated for complaining about sexual harassment of his female coworkers. (Id. at p. 105.) The trial court granted summary judgment for the employer, but the Court of Appeal reversed. (Ibid.)

The Court of Appeal explained summary judgment was inappropriate because, although the grocery store had established the district manager was unbiased, Reeves had presented sufficient evidence from which a jury could infer the store manager—who initiated and participated in the investigation—was motivated by retaliatory animus. (Reeves, supra, 121 Cal.App.4th at pp. 108-109.) The court illustrated its reasoning with the following example: “A supervisor annoyed by a worker’s complaints about sexual harassment might decide to get rid of that worker by, for instance, fabricating a case of misconduct, or exaggerating a minor instance of misconduct into one that will lead to dismissal. Another manager, accepting the fabricated case at face value, may decide, entirely without animus, to discharge the plaintiff. It would be absurd to say that the plaintiff in such a case could not prove a causal connection between discriminatory animus and his discharge.” (Ibid.) The court concluded Reeves created a triable issue of fact by presenting evidence of, among other things, the store manager’s resentment of Reeves’s sexual harassment complaint; the adequacy of the manager’s investigation of that complaint, the “zeal and sincerity” of which a “jury could doubt”; the manager’s “show[ing] insensitivity, at best, to matters of gender”; the manager’s substantial certainty that his referral of the disciplinary investigation to security would result in termination (id. at pp. 117-118); and the security investigator’s presentation of the results of his investigation to the district manager “in a highly unbalanced way.” (Id. at p. 120.)

Similar to Reeves, Dawson opposed the Club’s summary judgment motion with evidence from which a factfinder reasonably could infer that Walder harbored retaliatory animus toward Dawson. Dawson adduced evidence showing Walder considered her frustration with the “zeal and sincerity” of his live.com e-mail investigation to be “inappropriate”; Walder considered Dawson’s lawsuit against the Club to be retaliatory and feared she was trying to hurt the club; Walder offered to hire an investigator to look into Furlow’s e-mails if Dawson dropped her lawsuit; Walder told Dawson, “I was going to offer you this position, but then I received your lawsuit”; Walder characterized the “Dawson” side of the live.com e-mail exchanges “much more inappropriate” and as “her” “trying to get laid,” thus “show[ing] insensitivity, at best, to matters of gender” (Reeves, supra, 121 Cal.App.4th at p. 117); Walder never raised performance issues with Dawson until he e-mailed her counsel just after Dawson filed her lawsuit; and the Club’s HR representative, Stotz, said she felt Dawson’s termination was wrong.

Dawson also adduced evidence from which a factfinder reasonably could conclude Walder’s retaliatory animus infected the termination process. Walder testified he “provided the facts to the board”—”what the board learned about Ms. Dawson’s case it learned from [him]”; although Walder stated he consulted with the Club’s corporate counsel before terminating Dawson, Walder did not provide that counsel with any documents and “everything [counsel] learned about the circumstances, he learned from [Walder]”; and Walder recommended that the board terminate Dawson, a recommendation that was followed by eight of the board’s nine members.

The Club argues Walder exhibited no retaliatory animus “because after she filed her lawsuit, Walder offered her a promotion” and extensively negotiated its terms just prior to her termination. But even Walder acknowledged the new job was not a promotion. In addition, a jury could find that at the same time Walder was negotiating Dawson’s new role, he was also building a case against her, as evidenced by his June 1 e-mail to her counsel asserting performance issues.

In sum, ample evidence would allow a trier of fact to conclude that the Club’s purported bases for terminating Dawson are unworthy of credence. Consequently, the trial court erred by granting the Club’s summary judgment motion as to Dawson’s claim for retaliation.

2. Wrongful termination in violation of public policy

The trial court ruled that because it “found that Plaintiff’s cause of action for retaliation lacks merit, the first cause of action for termination in violation of public policy would also fail.” Because we concluded the trial court erred by granting summary judgment on Dawson’s retaliation claim, we likewise conclude the trial court erred by granting summary judgment on her claim for wrongful termination in violation of public policy.

DISPOSITION

The June 3, 2013 judgment is reversed. The order granting summary adjudication is vacated with respect to the Club, and the order granting summary judgment is vacated. The trial court is directed to enter an order denying the motion for summary adjudication

as to the Club and an order denying the motion for summary judgment. Dawson is entitled to her costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

Waushara County Case Number 2019CM000020 State of Wisconsin vs. James P Carney

The defendant James P Carney was found guilty of the following charge(s) in this case.

Operate w/o Valid License(1st Violation). This is not a criminal offense and results only in a money penalty for this offense.

Waushara County Case Number 2019CM000020 State of Wisconsin vs. James P Carney
Case summary

Filing date
01-11-2019

Case type
Criminal

Case status
Closed – Electronic filing

Defendant date of birth
06-14-1980

Address
312 W 12th Ave, Oshkosh, WI 54902

DA case number
2019WS000040

Case(s) cross-referenced with this case
2019TR000018

Charges
Printable version

Responsible official
Dutcher, Guy D

Prosecuting agency
District Attorney

Prosecuting agency attorney
Anderson, Steven Paul

Defendant owes the court: $0.00

Count no. Statute Description Severity Disposition
1 343.05(3)(a) Operate w/o Valid License(1st Violation) Forf. U Guilty Due to No Contest Plea

The Defendant was charged with the following offense:

Count
1

Statute cite
343.05(3)(a)

Description
Operate w/o Valid License(1st Violation)

Severity
Forf. U

Offense date
01-02-2019

Plea
No Contest on 03-18-2019

On 03-18-2019 there was a finding of:

Action
Guilty Due to No Contest Plea

Court official
Dutcher, Guy D

Notes

On 03-18-2019 the following was ordered:

Sentence
Forfeiture / Fine

Time

Begin date

Notes
Paid in full – bond previously posted has been applied.

Charge history

This history reflects charges that were issued by the District Attorney earlier in the case. Current charges can be seen above. Changes to charges can be made for many reasons, often based on the District Attorney’s ongoing assessment of the case. The case file may contain more information. Unless a Judgment of Conviction is entered, the defendant is presumed innocent of all charges.
Count Statute Description Replaced by
1 343.44(1)(b) Operating While Revoked (Rev due to alc/contr subst/refusal) Amended charge
Defendant

Defendant name
Carney, James P

Date of birth
06-14-1980

Sex
Male

Race
Caucasian

Address (last updated 01-11-2019)
312 W 12th Ave, Oshkosh, WI 54902

JUSTIS ID

Fingerprint ID

Citations
Citation BD2354892

Defendant name
Carney, James P

Date of birth
06-14-1980

Sex
Male

Address (last updated 01-11-2019)
312 W 12th Ave, Oshkosh, WI 54902

Bond amount

Deposit type
None

Appearance date and time
02-05-2019 03:00 pm

Mandatory
Yes

Plate number
592YPM

State
WI

Expiration
2019

VIN
1GMDX03E24D123975

Issuing agency
State Patrol

Officer name
Glick, Henry

Violation date
01-02-2019

MPH over

Plaintff agency
State of Wisconsin

Ordinance or statute
Statute

Statute
343.44(1)(b)

Charge description
Operating While Revoked (Rev due to alc/contr subst/refusal)

Severity
Misd. U

Court record
Date Event Court official Court reporter Amount
03-20-2019 Judgment of conviction Zamzow, Melissa
03-20-2019 Cash bond applied $250.00

Additional text:
19A 001139

03-18-2019 Dispositional order/judgment Dutcher, Guy D
03-18-2019 Charge amended
03-18-2019 Plea/sentencing hearing Dutcher, Guy D Gulbrandsen, Tara

Additional text:
Case called @ 02:40 PM Defendant James P Carney in court. Steven Paul Anderson appeared for the State of Wisconsin. Defendant has obtained a valid DL. Chapter 950 compliance addressed. Upon motion of the State the Court amends to No DL 1 contrary to Wis Stat 343.05(3)(a). Plea: NC. Court accepts plea and enters JOC. 19TR18 – DRI. Court orders: $250 forfeiture inclusive of costs w/ 60 DTP or PP.

02-05-2019 Other papers

Additional text:
Request for Text Message Reminder

02-05-2019 Cash bond signed Dutcher, Guy D $250.00
02-05-2019 Notice of hearing

Additional text:
Plea/sentencing hearing on March 18, 2019 at 03:00 pm.

02-05-2019 Cash bond set for Carney, James P Dutcher, Guy D Gulbrandsen, Tara $250.00

Additional text:
No operation of any motor vehicles without a valid driver’s license for the manner of operation.

02-05-2019 Waiver of preliminary hearing Dutcher, Guy D Gulbrandsen, Tara
02-05-2019 Initial appearance Dutcher, Guy D Gulbrandsen, Tara

Additional text:
Case called @ 02:52 PM Defendant James P Carney in court. Steven Paul Anderson appeared for the State of Wisconsin. Complaint Stated – Advised of offense and potential punishment. Receipt Admitted – Reading Waived. Advised of right of Counsel. Defendant waives right to counsel at this time. Defendant is working toward obtaining a valid DL. NGP entered as to both cases. Court orders $250 Cash Bond. P/S Scheduled – NOH Given. Court enters Riverside Ruling in favor of the State and probable cause finding as to each count alleged within the complaint. Plea/sentencing hearing scheduled for March 18, 2019 at 03:00 pm.

01-11-2019 Summons
01-11-2019 Electronic Filing Notice
01-11-2019 Case initiated by electronic filing
01-11-2019 Complaint filed
01-04-2019 Cash bond posted $250.00

Additional text:
19R 000132

Total receivables

Court assessments Adjustments Paid to the court Probation/other agency amount Balance due to court Due date
$250.00 $0.00 $250.00 $0.00 $0.00
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Vernon County Case Number 2019CM000034 State of Wisconsin vs. William Allen Espe

The defendant was charged with both OWI (2nd) and Operating w/ PAC (2nd). The defendant was found guilty of OWI (2nd) and the other charge, Operating w/ PAC (2nd) was dismissed by the court.

William Allen Espe was found guilty of OWI (2nd), an unclassified misdemeanor, Wisconsin Statutes 346.63(1)(a).

Charge(s) in this case were read in to this or other case(s). A “read in” charge is a charge that is dismissed as part of a plea agreement, however:

The defendant agrees to have the court consider the charge(s) when sentencing for another crime, under Wis. Stats. 973.20(1g)(b); and
The defendant cannot be prosecuted for these charge(s) in the future.

Vernon County Case Number 2019CM000034 State of Wisconsin vs. William Allen Espe
Case summary

Filing date
02-05-2019

Case type
Criminal

Case status
Closed – Electronic filing

Defendant date of birth
05-21-1956

Address
S6528 Weber Rd, Viroqua, WI 54665

DA case number
2019VE000016

Charges
Printable version

Responsible official
Rood, Darcy J.

Prosecuting agency
District Attorney

Prosecuting agency attorney
Betancourt, Jasmine

Defendant owes the court: $0.00

Count no. Statute Description Severity Disposition
1 346.63(1)(a) OWI (2nd) Misd. U Guilty Due to No Contest Plea
2 346.935(3) Keep Open Intoxicants in MV-Driver Forf. U Charge Dismissed but Read In
3 346.63(1)(b) Operating w/ PAC (2nd) Misd. U Charge Dismissed but Read In

The Defendant was charged with the following offense:

Count
1

Statute cite
346.63(1)(a)

Description
OWI (2nd)

Severity
Misd. U

Offense date
01-02-2019

Plea
No Contest on 05-28-2019

On 05-28-2019 there was a finding of:

Action
Guilty Due to No Contest Plea

Court official
Rood, Darcy J.

Notes

On 05-28-2019 the following was ordered:

Sentence
Forfeiture / Fine

Time

Begin date

Notes

Sentence
Costs

Time

Begin date

Notes

Sentence
Alcohol assessment

Time

Begin date

Notes

Sentence
Ignition interlock

Time
14 Months

Begin date

Notes

Sentence
DOT License Revoked

Time
14 Months

Begin date

Notes

Sentence
Local Jail

Time
20 Days

Begin date

Notes
Huber granted Consecutive to: 19CM35

Count
2

Statute cite
346.935(3)

Description
Keep Open Intoxicants in MV-Driver

Severity
Forf. U

Offense date
01-02-2019

Plea

On 05-29-2019 there was a finding of:

Action
Charge Dismissed but Read In

Court official
Rood, Darcy J.

Notes

Count
3

Statute cite
346.63(1)(b)

Description
Operating w/ PAC (2nd)

Severity
Misd. U

Offense date
01-02-2019

Plea

On 05-29-2019 there was a finding of:

Action
Charge Dismissed but Read In

Court official
Rood, Darcy J.

Notes

Charge history

This history reflects charges that were issued by the District Attorney earlier in the case. Current charges can be seen above. Changes to charges can be made for many reasons, often based on the District Attorney’s ongoing assessment of the case. The case file may contain more information. Unless a Judgment of Conviction is entered, the defendant is presumed innocent of all charges.
Count Statute Description Replaced by
1 346.63(1)(a) OWI (2nd) Amended Complaint Filed
2 346.935(3) Keep Open Intoxicants in MV-Driver Amended Complaint Filed
Defendant

Defendant name
Espe, William Allen

Date of birth
05-21-1956

Sex
Male

Race
Caucasian

Address (last updated 02-05-2019)
S6528 Weber Rd, Viroqua, WI 54665

JUSTIS ID

Fingerprint ID

Attorneys
Attorney name Entered
Hagen, Eric Benjamin 02-19-2019

Also known as
Name Type Date of birth
Espe, William A Also known as

Citations
Citation BC9559550

Defendant name
Espe, William Allen

Date of birth
05-21-1956

Sex
Male

Address (last updated 02-05-2019)
S6528 Weber Rd, Viroqua, WI 54665

Bond amount
$500.00

Deposit type
None

Appearance date and time
02-05-2019 08:30 am

Mandatory
Yes

Plate number
704CPP

State
WI

Expiration
2019

VIN
JF2SJADC8GH457880

Issuing agency
Viroqua Police Department

Officer name
Nottestad, Emilee

Violation date
01-02-2019

MPH over

Plaintff agency
State of Wisconsin

Ordinance or statute
Statute

Statute
346.63(1)(a)

Charge description
OWI (2nd)

Severity
Misd. U

Citation AD7392361

Defendant name
Espe, William Allen

Date of birth
05-21-1956

Sex
Male

Address (last updated 02-05-2019)
S6528 Weber Rd, Viroqua, WI 54665

Bond amount
$500.00

Deposit type
None

Appearance date and time
04-02-2019 08:30 am

Mandatory
Yes

Plate number
704CPP

State
WI

Expiration
2019

VIN
JF2SJADC8GH457880

Issuing agency
Viroqua Police Department

Officer name
Franks, Jason

Violation date
01-02-2019

MPH over

Plaintff agency
State of Wisconsin

Ordinance or statute
Statute

Statute
346.63(1)(b)

Charge description
Operating w/ PAC (2nd)

Severity
Misd. U

Court record
Date Event Court official Court reporter Amount
06-13-2019 Request
05-29-2019 Judgment of conviction Hanson, Amy K
05-28-2019 Plea questionnaire, waiver of rights
05-28-2019 Dispositional order/judgment Rood, Darcy J.
05-28-2019 Plea hearing Rood, Darcy J. Veres, Susan
05-07-2019 Status conference Rood, Darcy J. Veres, Susan
04-02-2019 Status conference Rood, Darcy J. Veres, Susan
04-01-2019 Amended complaint
03-05-2019 Adjourned initial appearance Rood, Darcy J. Veres, Susan
02-19-2019 Authorization
02-19-2019 eFiled Document Fee Paid $20.00

Additional text:
Adjustment Number: 19A 001906, Payable Number: 53764, Receipt Number: 19R 000578, Amount: $20.00

02-19-2019 Notice of retainer
02-05-2019 Other papers

Additional text:
Acknowledgment of Rights at Initial Appearance

02-05-2019 Signature bond signed
02-05-2019 Initial appearance Rood, Darcy J. Veres, Susan
02-05-2019 Electronic Filing Notice
02-05-2019 Case initiated by electronic filing
02-05-2019 Complaint filed
Total receivables

Court assessments Adjustments Paid to the court Probation/other agency amount Balance due to court Due date
$1,605.00 $0.00 $1,605.00 $0.00 $0.00
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Waukesha County Case Number 2019CM000230 State of Wisconsin vs. Kimberly A Bell

Charge(s) in this case were read in to this or other case(s). A “read in” charge is a charge that is dismissed as part of a plea agreement, however:

The defendant agrees to have the court consider the charge(s) when sentencing for another crime, under Wis. Stats. 973.20(1g)(b); and
The defendant cannot be prosecuted for these charge(s) in the future.

Waukesha County Case Number 2019CM000230 State of Wisconsin vs. Kimberly A Bell
Case summary

Filing date
02-04-2019

Case type
Criminal

Case status
Closed – Electronic filing

Defendant date of birth
06-25-1972

Address
1005 Verdant Dr, Elm Grove, WI 53122

Branch ID
12

DA case number
2019WK000149

Charges
Printable version

Responsible official
Lau, Laura F

Prosecuting agency
District Attorney

Prosecuting agency attorney
Opper, Susan L.

Defendant owes the court: $0.00

Count no. Statute Description Severity Disposition
1 946.49(1)(a) Bail Jumping-Misdemeanor Misd. A Charge Dismissed but Read In
2 343.44(1)(b) Operating While Revoked (Rev due to alc/contr subst/refusal) Misd. U Charge Dismissed but Read In

The Defendant was charged with the following offense:

Count
1

Statute cite
946.49(1)(a)

Description
Bail Jumping-Misdemeanor

Severity
Misd. A

Offense date
01-02-2019

Plea

On 07-24-2019 there was a finding of:

Action
Charge Dismissed but Read In

Court official
Lau, Laura F

Notes
Dismissed and Read-in to: 18CM1610

Count
2

Statute cite
343.44(1)(b)

Description
Operating While Revoked (Rev due to alc/contr subst/refusal)

Severity
Misd. U

Offense date
01-02-2019

Plea

On 07-24-2019 there was a finding of:

Action
Charge Dismissed but Read In

Court official
Lau, Laura F

Notes
Dismissed and Read-in to: 18CM1610

Defendant

Defendant name
Bell, Kimberly A

Date of birth
06-25-1972

Sex
Female

Race
Caucasian

Address (last updated 02-04-2019)
1005 Verdant Dr, Elm Grove, WI 53122

JUSTIS ID

Fingerprint ID

Also known as
Name Type Date of birth
Knasinski, Kimberly A Also known as

Citations
Citation BB1951471

Defendant name
Bell, Kimberly A

Date of birth
06-25-1972

Sex
Female

Address (last updated 02-04-2019)
1005 Verdant Dr, Elm Grove, WI 53122

Bond amount
$250.00

Deposit type
None

Appearance date and time
02-19-2019 08:00 am

Mandatory
Yes

Plate number
504GFD

State
WI

Expiration
2019

VIN
JTEBU11FX8K041026

Issuing agency
New Berlin Police Dept

Officer name

Violation date
01-02-2019

MPH over

Plaintff agency
State of Wisconsin

Ordinance or statute
Statute

Statute
343.44(1)(b)

Charge description
Operating While Revoked (Rev due to alc/contr subst/refusal)

Severity
Misd. U

Court record
Date Event Court official Court reporter Amount
07-24-2019 Judgment of dismissal/acquittal Lau, Laura F
07-24-2019 Dispositional order/judgment Lau, Laura F
07-24-2019 Hearing Lau, Laura F Redlin, Kathleen

Additional text:
10:27 AM Defendant Kimberly A Bell in court with attorney Jason David Luczak. Mary Caitlin Brejcha appeared for the State of Wisconsin. Parties have reached an agreement. Case dismissed and read in to 18CM1610.

07-10-2019 Notice of hearing

Additional text:
Plea/sentencing hearing on July 24, 2019 at 09:30 am.

07-10-2019 Notice of hearing

Additional text:
Jury status hearing on July 11, 2019 at 08:30 am.

06-14-2019 Witness list – plaintiff Lau, Laura F

Additional text:
State’s Witness List.

06-14-2019 Witness list – plaintiff Lau, Laura F

Additional text:
State’s Witness List.

05-16-2019 Notice of hearing Lau, Laura F Redlin, Kathleen

Additional text:
Jury status hearing on July 11, 2019 at 08:30 am. Jury trial – 12 person on July 23, 2019 at 08:30 am.

05-16-2019 Hearing Lau, Laura F Redlin, Kathleen

Additional text:
10:15 AM Defendant Kimberly A Bell in court with attorney Jason David Luczak. Michele W. Hulgaard appeared for the State of Wisconsin. Defense is still waiting to receive an offer and requests an adjournment. Court will set both cases for jury trial. Jury trial expected to last 2 days. Jury status hearing scheduled for July 11, 2019 at 08:30 am. Jury trial – 12 person scheduled for July 23, 2019 at 08:30 am.

04-25-2019 Notice of hearing

Additional text:
Plea/sentencing hearing on May 16, 2019 at 10:00 am.

03-29-2019 Notice of hearing

Additional text:
Plea/sentencing hearing on May 9, 2019 at 08:30 am.

03-29-2019 Hearing Lau, Laura F Redlin, Kathleen

Additional text:
08:37 AM Defendant Kimberly A Bell in court with attorney Jason David Luczak. Michael Thurston appeared for the State of Wisconsin. Defense requests more time to work on a global resolution and some final details prior to change of plea. Plea/sentencing hearing scheduled for May 9, 2019 at 08:30 am.

02-19-2019 Notice of hearing

Additional text:
Hearing on March 29, 2019 at 08:30 am.

02-19-2019 Signature bond signed $500.00
02-19-2019 Signature bond set for Bell, Kimberly A Scullen, Sara Recorded Hearing $500.00

Additional text:
Defendant is not to operate a motor vehicle unless properly licensed. Comply with all licensing restrictions. Defendant to comply with I.D. Processing.

02-19-2019 Initial appearance Scullen, Sara Recorded Hearing

Additional text:
08:31 AM Defendant Kimberly A Bell in court with attorney Brianna J. Meyer. District Attorney’s Office Law Intern appeared for the State of Wisconsin. Defense acknowledges receipt of complaint and waives reading of complaint. NOT GUILTY PLEA ENTERED. Hearing scheduled for March 29, 2019 at 08:30 am.

02-04-2019 Demand for Discovery – Prosecutor
02-04-2019 Electronic Filing Notice
02-04-2019 Case initiated by electronic filing
02-04-2019 Complaint filed Lau, Laura F
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Milwaukee County Case Number 2019FO000110 State of Wisconsin vs. Markenson Innocent

The defendant Markenson Innocent was found guilty of the following charge(s) in this case.

Deposit or Discharge Solid Waste on Public or Private Property (<10 gallons). This is not a criminal offense and results only in a money penalty for this offense. Milwaukee County Case Number 2019FO000110 State of Wisconsin vs. Markenson Innocent Case summary Filing date 01-23-2019 Case type Non-Traffic Ordinance Violation Case status Closed - Electronic filing Defendant date of birth 11-1982 Address PO Box 370831, Miami, FL 33137 Branch ID 40 DA case number Charges Printable version Responsible official Jones, Andrew A. Prosecuting agency District Attorney Prosecuting agency attorney Defendant owes the court: $0.00 Count no. Statute Description Severity Disposition 1 287.81(2)(a) Deposit or Discharge Solid Waste on Public or Private Property (<10 gallons) Forf. U Guilty Due to No Contest Plea The Defendant was charged with the following offense: Count 1 Statute cite 287.81(2)(a) Description Deposit or Discharge Solid Waste on Public or Private Property (<10 gallons) Severity Forf. U Offense date 01-02-2019 Plea No Contest on 02-12-2019 On 02-12-2019 there was a finding of: Action Guilty Due to No Contest Plea Court official Phillips, Barry Notes On 02-12-2019 the following was ordered: Sentence Forfeiture / Fine Time Begin date Notes Charge history This history reflects charges that were issued by the District Attorney earlier in the case. Current charges can be seen above. Changes to charges can be made for many reasons, often based on the District Attorney's ongoing assessment of the case. The case file may contain more information. Unless a Judgment of Conviction is entered, the defendant is presumed innocent of all charges. Count Statute Description Replaced by 1 192.32(1) RR-Trespassing on Railroad Amended charge Defendant Defendant name Innocent, Markenson Date of birth 11-1982 Sex Male Race Caucasian Address (last updated 01-02-2019) PO Box 370831, Miami, FL 33137 JUSTIS ID Fingerprint ID Citations Citation BJ80XWW13M Defendant name Innocent, Markenson Date of birth 11-1982 Sex Male Address (last updated 01-02-2019) PO Box 370831, Miami, FL 33137 Bond amount $270.50 Deposit type None Appearance date and time 02-12-2019 08:30 am Mandatory No Plate number State Expiration VIN Issuing agency Canadian Pacific Police Officer name Violation date 01-02-2019 MPH over Plaintff agency State of Wisconsin Ordinance or statute Statute Statute 192.32(1) Charge description RR-Trespassing on Railroad Severity Forf. U Court record Date Event Court official Court reporter Amount 02-12-2019 Dispositional order/judgment Phillips, Barry 02-12-2019 Charge amended 02-12-2019 Intake Phillips, Barry Digital Recording Additional text: Defendant Markenson Innocent in court. No Assistant District Attorney Available appeared for the State of Wisconsin. Court ordered charge amended to Littering contrary to Wisconsin Statutes section 287.81(2)(a) to which Defendant plead no contest. Court finds defendant guilty of amended charge. Court orders a forfeiture in the amount of $50.00 including costs to be paid by 04-15-2019 or civil judgment. 01-23-2019 Other papers Additional text: Canadian Pacific Citation Sheet 01-23-2019 File Retained Electronically 01-23-2019 Case initiated by electronic filing 01-23-2019 Citation filed Total receivables Court assessments Adjustments Paid to the court Probation/other agency amount Balance due to court Due date $50.00 $0.00 $50.00 $0.00 $0.00 Return to search results Previous Next Technical problems? Contact us. Notices and disclosures | Public records on the internet | Data extraction option | RSS

Eau Claire County Case Number 2019FO000111 City of Eau Claire vs. Elizabeth Ann Miller

The defendant Elizabeth Ann Miller was found guilty of the following charge(s) in this case.

Prohibited Pawning Violation. This is not a criminal offense and results only in a money penalty for this offense.

Eau Claire County Case Number 2019FO000111 City of Eau Claire vs. Elizabeth Ann Miller
Case summary

Filing date
01-24-2019

Case type
Non-Traffic Ordinance Violation

Case status
Closed – Electronic filing

Defendant date of birth
06-1998

Address
14106 5th St # 3, Osseo, WI 54758

DA case number

Charges
Printable version

Responsible official
Novak, Nathan E.

Prosecuting agency
City Attorney’s Office

Prosecuting agency attorney
Hoffer, Douglas James

Defendant owes the court: $1,058.14

Count no. Statute Description Severity Disposition
1 5.04.130 Prohibited Pawning Violation Forf. U Guilty Due to No Contest Plea

The Defendant was charged with the following offense:

Count
1

Statute cite
5.04.130

Description
Prohibited Pawning Violation

Severity
Forf. U

Offense date
01-02-2019

Plea
Not Guilty on 02-26-2019

On 02-26-2019 there was a finding of:

Action
Guilty Due to No Contest Plea

Court official
Veith, Pamela J.

Notes

On 02-26-2019 the following was ordered:

Sentence
Forfeiture / Fine

Time

Begin date

Notes

Defendant

Defendant name
Miller, Elizabeth Ann

Date of birth
06-1998

Sex
Female

Race
Caucasian

Address (last updated 01-02-2019)
14106 5th St # 3, Osseo, WI 54758

JUSTIS ID

Fingerprint ID

Citations
Citation 2V808BLHLG

Defendant name
Miller, Elizabeth Ann

Date of birth
06-1998

Sex
Female

Address (last updated 01-02-2019)
14106 5th St # 3, Osseo, WI 54758

Bond amount
$1,019.50

Deposit type
None

Appearance date and time
02-26-2019 01:30 pm

Mandatory
No

Plate number

State

Expiration

VIN

Issuing agency
City of Eau Claire

Officer name
Bjorkman, Wayne L.

Violation date
01-02-2019

MPH over

Plaintff agency
City of Eau Claire

Ordinance or statute
Ordinance

Statute
5.04.130

Charge description
Prohibited Pawning Violation

Severity
Forf. U

Court record
Date Event Court official Court reporter Amount
05-16-2019 Return of unclaimed/undelivered mail service

Additional text:
Judgment for unpaid fine/forfeiture/other not sent; no current address.

05-15-2019 Judgment for unpaid fine/forfeiture/other $1,019.50
02-26-2019 Notice of Default Judgment Novak, Nathan E.
02-26-2019 Dispositional order/judgment Veith, Pamela J.
02-26-2019 Not guilty plea Novak, Nathan E.

Additional text:
Count 01

02-26-2019 Default judgment entered Veith, Pamela J.
01-24-2019 Case initiated by electronic filing
01-24-2019 Citation filed
Civil judgment details
Judgment for money

County
Eau Claire

Case number
2019FO000111

Caption
City of Eau Claire vs. Elizabeth Ann Miller

Judgment/lien date
05-15-2019

Total amount
$1,058.14

Type of tax

Warrant number

Date and time docketed
05-15-2019 at 02:57 pm

Service/event date

Satisfaction
No

Judgment status

Date

Property/remarks

Judgment partiesParty type Name Dismissed Status Address Attorney name
Debtor Elizabeth Ann Miller No Active 14106 5th St # 3, Osseo, WI 54758
Creditor Eau Claire County Clerk of Circuit Court No Active
Costs / amountsDescription Amount
Judgment amount $1,019.50
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Total receivables

Court assessments Adjustments Paid to the court Probation/other agency amount Balance due to court Due date
$1,025.02 $33.12 $0.00 $0.00 $1,058.14 04-29-2019
Pay at state debt collection website
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Eau Claire County Case Number 2019FO000112 City of Eau Claire vs. Scott E Miller

The defendant Scott E Miller was found guilty of the following charge(s) in this case.

Prohibited Pawning Violation. This is not a criminal offense and results only in a money penalty for this offense.

Eau Claire County Case Number 2019FO000112 City of Eau Claire vs. Scott E Miller
Case summary

Filing date
01-24-2019

Case type
Non-Traffic Ordinance Violation

Case status
Closed – Electronic filing

Defendant date of birth
05-1971

Address
14106 5th St # 3, Osseo, WI 54758

DA case number

Charges
Printable version

Responsible official
Novak, Nathan E.

Prosecuting agency
City Attorney’s Office

Prosecuting agency attorney

Defendant owes the court: $1,058.14

Count no. Statute Description Severity Disposition
1 5.04.130 Prohibited Pawning Violation Forf. U Guilty Due to No Contest Plea

The Defendant was charged with the following offense:

Count
1

Statute cite
5.04.130

Description
Prohibited Pawning Violation

Severity
Forf. U

Offense date
01-02-2019

Plea
No Contest on 02-26-2019

On 02-26-2019 there was a finding of:

Action
Guilty Due to No Contest Plea

Court official
Veith, Pamela J.

Notes

On 02-26-2019 the following was ordered:

Sentence
Forfeiture / Fine

Time

Begin date

Notes

Defendant

Defendant name
Miller, Scott E

Date of birth
05-1971

Sex
Male

Race
Caucasian

Address (last updated 01-02-2019)
14106 5th St # 3, Osseo, WI 54758

JUSTIS ID

Fingerprint ID

Citations
Citation 2V808BLHLF

Defendant name
Miller, Scott E

Date of birth
05-1971

Sex
Male

Address (last updated 01-02-2019)
14106 5th St # 3, Osseo, WI 54758

Bond amount
$1,019.50

Deposit type
None

Appearance date and time
02-26-2019 01:30 pm

Mandatory
No

Plate number

State

Expiration

VIN

Issuing agency
City of Eau Claire

Officer name
Bjorkman, Wayne L.

Violation date
01-02-2019

MPH over

Plaintff agency
City of Eau Claire

Ordinance or statute
Ordinance

Statute
5.04.130

Charge description
Prohibited Pawning Violation

Severity
Forf. U

Court record
Date Event Court official Court reporter Amount
05-16-2019 Return of unclaimed/undelivered mail service

Additional text:
Judgment for unpaid fine/forfeiture/other not sent; no current address.

05-15-2019 Judgment for unpaid fine/forfeiture/other $1,019.50
02-26-2019 Notice of Default Judgment Novak, Nathan E.
02-26-2019 Dispositional order/judgment Veith, Pamela J.
02-26-2019 Default judgment entered Veith, Pamela J.
01-24-2019 Case initiated by electronic filing
01-24-2019 Citation filed
Civil judgment details
Judgment for money

County
Eau Claire

Case number
2019FO000112

Caption
City of Eau Claire vs. Scott E Miller

Judgment/lien date
05-15-2019

Total amount
$1,058.14

Type of tax

Warrant number

Date and time docketed
05-15-2019 at 02:57 pm

Service/event date

Satisfaction
No

Judgment status

Date

Property/remarks

Judgment partiesParty type Name Dismissed Status Address Attorney name
Debtor Scott E Miller No Active 14106 5th St # 3, Osseo, WI 54758
Creditor Eau Claire County Clerk of Circuit Court No Active
Costs / amountsDescription Amount
Judgment amount $1,019.50
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Post-judgment interest $5.52
Total receivables

Court assessments Adjustments Paid to the court Probation/other agency amount Balance due to court Due date
$1,025.02 $33.12 $0.00 $0.00 $1,058.14 04-29-2019
Pay at state debt collection website
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Case Name: Tim Devine v. Scayl, Inc. a/k/a Nexo, et al.

Case No.: 17CV319725

Defendant Stephen Douty’s Motion for Summary Judgement or, in the Alternative, Summary Adjudication

Factual and Procedural Background

Plaintiff Tim Devine (“Devine”) is an accomplished and well-respected music executive, entrepreneur, and technology worker. (Complaint, ¶1.)

In or around April 2014, defendant Scayl, Inc. a/k/a Nexon (“Scayl”) hired Devine to be the Senior Vice President of Business Development pursuant to a written employment agreement. (Complaint, ¶¶15 and 17 and Exh. A.) Devine entered into this agreement with Scayl, then acting via its Chief Executive Officer, Mike McEvoy (“McEvoy”). (Id.)

Scayl and Devine agreed that Devine’s compensation was to be $10,000 per month in addition to fringe benefits. (Complaint, ¶16.) Additionally, Devine’s contract includes a three month severance package valued at approximately $30,000. (Id.)

After Devine commenced work at Scayl, Devine received two bi-weekly paychecks of $5,000 issued on or around May 1, 2014 and May 15, 2014. (Complaint, ¶18.) Approximately one year later in May 2015, Scayl paid Devine one additional paycheck for $6,666.67. (Id.) Scayl otherwise failed to pay Devine for his work. (Id.)

For approximately four months from the beginning of Devine’s employment with Scayl, Scayl reimbursed Devine for business expenses incurred by Devine while performing his job duties. (Complaint, ¶19.) Thereafter, Devine continued to incur expenses on behalf of Scayl, but Scayl ceased reimbursing Devine with the exception of two $4,000 checks paid in July 2015 and May 2016, respectively. (Id.) Devine continues to necessarily cover business expenses for Scayl with no reimbursement. (Id.)

In or around October 2014, defendant Stephen Douty (“Douty”) took over McEvoy’s position as CEO. (Complaint, ¶20.) Following Douty’s take-over, Devine repeatedly demanded Douty cause Scayl to pay Devine his wages and expense reimbursements owed. (Complaint, ¶21.)

Scayl is presently being funded entirely by Douty. (Complaint, ¶22.) On information and belief, Douty commingles his personal assets with those of his companies, including Scayl. (Id.) On information and belief, Douty intentionally keeps Scayl undercapitalized and underfunded to justify defendants’ continued failure to pay Devine his wages and expense reimbursements. (Id.)

On April 18, 2017, plaintiff Devine filed a complaint in Los Angeles County Superior Court against defendants Scayl and Douty asserting causes of action for:

(1) Breach of Written Contract
(2)
(3) Breach of the Implied Covenant of Good Faith and Fair Dealing
(4)
(5) Violation of Labor Code §§200, 218, 1194, et seq. [Failure to Pay Wages]
(6)
(7) Violations of Labor Code §§1194 and 1197, et seq. [Failure to Pay Minimum Wage]
(8)
(9) Violation of Labor Code §226 [Failure to Provide Itemized Wage Statements]
(10)
(11) Violation of Labor Code §2802 [Failure to Reimburse Business & Travel Expenses]
(12)
(13) Violation of Civil Code §§1572, 1709 – 1710 [Fraud]
(14)
(15) Conversion
(16)
(17) Goods and Services Rendered
(18)
(19) Quantum Meruit/ Unjust Enrichment
(20)
(21) Violation of Business & Professions Code §§17200, et seq.
(22)

On August 3, 2017, the Los Angeles County Superior Court (Hon. Ruth Ann Kwan) granted defendant Scayl’s motion to transfer venue to Santa Clara County. On November 27, 2017, Santa Clara County Superior Court assumed jurisdiction.

On December 22, 2017, defendant Scayl filed notice of Chapter 7 Bankruptcy case closure.

On December 28, 2017, defendant Scayl filed an answer to plaintiff Devine’s complaint.

On December 29, 2017, defendant Douty filed an answer to plaintiff Devine’s complaint.

On November 8, 2019, defendant Douty filed the motion now before the court, a motion for summary judgment/ adjudication of plaintiff Devine’s complaint.

On January 10, 2020, plaintiff Devine filed a request for dismissal of the second, eighth, ninth, and tenth causes of action of his complaint.

I. Defendant Douty’s motion for summary judgment/ adjudication is DENIED.
II.

Defendant Douty’s liability on each of the causes of action asserted in plaintiff Devine’s complaint is premised, partially or entirely, upon an alter ego theory. (See Complaint, ¶9.) Defendant Douty moves for summary judgment/ adjudication by arguing plaintiff Devine cannot establish defendant Douty was the alter ego of Scayl.

“Alter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1285, 31 Cal.Rptr.2d 433.) “The essence of the alter ego doctrine is that justice be done…. Thus the corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 301, 216 Cal.Rptr. 443, 702 P.2d 601.)

Whether a party is liable under an alter-ego theory is normally a question of fact. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1248, 1 Cal.Rptr.2d 301; accord, RLH Industries, Inc. v. SBC Communications, Inc. (2005) 133 Cal.App.4th 1277, 1288, 35 Cal.Rptr.3d 469.) “The conditions under which the corporate entity may be disregarded, or the corporation be regarded as the alter ego of the stockholders, necessarily vary according to the circumstances in each case inasmuch as the doctrine is essentially an equitable one and for that reason is particularly within the province of the trial court.” (Stark v. Coker (1942) 20 Cal.2d 839, 846, 129 P.2d 390.) Nevertheless, it is generally stated that in order to prevail on an alter-ego theory, the plaintiff must show that “(1) there is such a unity of interest that the separate personalities of the corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is respected.” (Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1285, 31 Cal.Rptr.2d 433.)

“The alter ego test encompasses a host of factors: ‘[1] [c]ommingling of funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of corporate funds or assets to other than corporate uses …; the treatment by an individual of the assets of the corporation as his own …; the failure to obtain authority to issue stock or to subscribe to or issue the same …; the holding out by an individual that he is personally liable for the debts of the corporation …; the failure to maintain minutes or adequate corporate records, and the confusion of the records of the separate entities …; the identical equitable ownership in the two entities; the identification of the equitable owners thereof with the domination and control of the two entities; identification of the directors and officers of the two entities in the responsible supervision and management; sole ownership of all of the stock in a corporation by one individual or the members of a family …; the use of the same office or business location; the employment of the same employees and/or attorney …; the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization …; the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation …; the concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities …; the disregard of legal formalities and the failure to maintain arm’s length relationships among related entities …; the use of the corporate entity to procure labor, services or merchandise for another person or entity …; the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another …; the contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions …; and the formation and use of a corporation to transfer to it the existing liability of another person or entity.’ … [¶] This long list of factors is not exhaustive. The enumerated factors may be considered ‘[a]mong’ others ‘under the particular circumstances of each case.’ ” (Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, LLP (1999) 69 Cal.App.4th 223, 249–250, 81 Cal.Rptr.2d 425, quoting Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838–840, 26 Cal.Rptr. 806; see also VirtualMagic Asia, Inc. v. Fil–Cartoons, Inc. (2002) 99 Cal.App.4th 228, 245, 121 Cal.Rptr.2d 1.) “No single factor is determinative, and instead a court must examine all the circumstances to determine whether to apply the doctrine. [Citation.]” (VirtualMagic Asia, Inc. v. Fil–Cartoons, Inc., supra, 99 Cal.App.4th at p. 245, 121 Cal.Rptr.2d 1.)

(Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 810–812; emphasis added.)

Defendant Douty proffers the following facts to address the host of factors that a court must consider in determining whether to apply the alter ego doctrine: From incorporation through its eventual bankruptcy, and pursuant to its bylaws, Scayl held frequent, regular board meetings, of which regular minutes were kept and maintained as party of Scayl’s ordinary course of business. Scayl’s start-up business developed mesh networking technologies that enabled people to communicate directly, more efficiently, privately, and securely, with easy email-like ease-of-use and no attachment size limits. Scayl had its own business bank accounts at Wells Fargo, which remained active until Scayl stopped operating. At times, all of Scayl’s bank records and tax returns were available to its board of directors in a “Due Diligence” folder on DropBox, to which the board had access. At no time were Scayl’s bank records or tax returns withheld from any member of the board of directors. The records were available to the board of directors at all times and reviewed by the board at various times from January 2014 until Scayl’s bankruptcy in August 2017. All tax returns for Scayl were filed with the IRS, the State of California, and the State of Oregon. In addition, all appropriate franchise taxes were paid.

Plaintiff Devine was a member of Scayl’s board of directors from in or around January 2014 through June 2017, when plaintiff was removed after filing the instant lawsuit. During his tenure as a director, plaintiff regularly attended the company’s board meetings, along with director Jonathan Bower, and Douty. Plaintiff entered into a board of director agreement with Scayl in April 2014. The Director Agreement was signed by plaintiff on April 6, 2014 and digitally signed by Scayl’s then-CEO, McEvoy, the same day. The Director Agreement did not provide for monetary compensation; it provided a stock option comprising a grant of 305,000 shares of Scayl.

At the time plaintiff signed the Director Agreement with Scayl, the company was not generating revenue or profitable, and it needed to raise money, facts known to Plaintiff, which prompted then-CEO McEvoy’s removal and Douty’s subsequent hire. The board of directors, including plaintiff, terminated McEvoy as Scayl’s CEO because he was not raising sufficient capital for the company. Plaintiff later learned that Scayl was undercapitalized under McEvoy, with only approximately $50,000 in fund at the time McEvoy was terminated as CEO.

In April 2014, plaintiff signed a written employment agreement to become Scayl’s Vice President of Business Operations. During the period when plaintiff joined Scayl as a board member until McEvoy’s termination, plaintiff only received one paycheck in May 2014 from Scayl. Despite the lack of capital being generated by Scayl, plaintiff continued working for the company for three years because of its potential upside and because in any start-up business there is a need to raise capital.

In October 2014, Douty was hired as Scayl’s CEO by a five-member board of directors which included plaintiff because of Douty’s fundraising experience. Douty’s employment agreement provided for an annual base salary of $240,000. Douty also held a seat on Scayl’s board, replacing McEvoy. During his tenure as Scayl’s CEO, Douty did not personally employ plaintiff or any other board member. Douty played no role and had no participation in hiring plaintiff since plaintiff’s involvement with Scayl predated Douty joining the company. Douty never had any ownership interest in Scayl, as he did not own any shares or have any ownership stake in Scayl. While Douty received stock options in Scayl as part of his compensation, at no point did he ever exercise any of the stock options in the company. As CEO, Douty reported to Scayl’s board of directors which evaluated Douty’s performance and could discipline or terminate him with or without cause. In October 2016, Scayl’s board of directors started to interview replacements for Douty and plaintiff considered taking the job as CEO.

During Douty’s tenure with Scayl, the company was not generating revenue or a profit. While Douty and plaintiff sought investors, their success was minimal and their efforts did not generate enough investor funds to satisfy the company’s ongoing expenses and debts. In an effort to maintain adequate capitalization to allow the company to continue operating, Douty personally advanced more than $400,000 in loans to the company. At the time Douty made the loans to keep Scayl operating, Scayl had insufficient funds in its bank accounts to satisfy necessary operating expenses. As of April 2014, all of Scayl’s assets, consisting of Scayl’s intellectual property, were pledged to Edgelink LLC, its sole secured creditor. Douty made approximately 115 separate advances to Scayl for the purpose of continuing Scayl’s product development efforts so its products could be taken to market. Douty kept records of all such advances and recorded them as liabilities in Scayl’s accounting system. Upon request, Douty provided a copy of his ledger to all board members to keep them informed of Scayl’s financial status.

In order to assist with his efforts to maintain adequate capitalization of Scayl to meet operational needs, Douty requested on two occasions that other board members, including plaintiff and Bower, also advance loans to the company but both declined to do so. At no time did Douty commingle company and personal funds, or use Scayl’s funds for any purpose other than a legitimate business purpose. Additionally, at no point during Douty’s tenure as director and CEO was Scayl purposefully or intentionally undercapitalized. Each advance Douty made to Scayl was for the specific purpose to maintain enough capitalization to ensure the company could keep developing its product, become financeable and stave off bankruptcy. Plaintiff understood that the advances made by Douty were the only thing keeping Scayl operational. Without the loans Douty made to the company, Scayl would have gone out of business sooner than it did.

As part of the effort to reduce operating costs, in the fall of 2014, Douty made the decision for Scayl to not renew a lease for dedicated office space, and the company’s directors and officers (including plaintiff, Douty, and Bower) began working for Scayl out of their respective homes. Scayl’s business address, 2995 Woodside Road, Suite 400, was a “mail office” business that provides business addresses to companies so that they do not have to use a PO box or residential office. Douty worked out of his home office in Woodside, but the home was not Scayl’s corporate office.

Upon being hired as Scayl’s CEO, Douty received three initial paychecks of $10,000 each dated October 31, 2014, November 15, 2014, and November 30, 2014. Douty only deposited one further paycheck from Scayl for an additional $10,000. Pursuant to his employment agreement, Douty should have been compensated approximately $580,000 by Scayl, but due to lack of funds, Douty was only paid a total of $40,000.

On May 1, 2017, a revolving line of credit note was executed detailing Scayl’s repayment schedule of the capital Douty advanced the company. Attached to the note is a schedule of each transaction detailing the funds advanced by Douty. The note was executed by Douty, as lender, and Scayl, as debtor, through Bower, Scayl’s chairman of the board of directors. At no point in time did Scayl repay any of the amounts that Douty loaned to the company.

On August 3, 2017, Scayl filed for Chapter 7 protection in the United States Bankruptcy Court in the Northern District of California. On November 3, 2017, the Bankruptcy Court issued its final decree whereupon the bankruptcy was closed. Scayl has ceased to operate and is defunct.

In opposition, plaintiff Devine contends there is evidence which supports a finding of alter ego liability or, at the very least, presents a triable issue of material fact. Plaintiff Devine points to Douty’s own evidence which demonstrates that Scayl was undercapitalized. Plaintiff Devine also puts forth his own evidence affirming Scayl’s lack of operating capital. The court does not find the mere fact that Scayl was undercapitalized to be in conflict. The more important factor is the underlying reason for the undercapitalization. As explained by Douty, Scayl was a start-up company in search of funding which was undercapitalized before he assumed the position of CEO and continued to be undercapitalized thereafter due to the inability to obtain funding, despite Douty’s advancement of $400,000 in loans to keep Scayl in operation. Devine does not offer any evidence which would present a triable issue of material fact with regard to this explanation for the undercapitalization.

Plaintiff Devine also proffers evidence from which he asserts that Douty “dominated and controlled” Scayl. Specifically, upon becoming CEO, without consulting the Board or anyone at Scayl, Douty changed Scayl’s product from an email product to a file transfer product and rebranded Scayl’s name to ‘Nexo, Inc.’” Douty’s isolation, unilateral decision-making, and failure to communicate was frustrating to Scayl’s Board and shareholders and drove Peter Weinstein to resign from the Board. Douty handled Scayl’s accounting and bookkeeping. Arguably, this evidence conflicts with Douty’s evidence that he reported to the board of directors who evaluated his performance and could terminate him with or without cause. The evidence also conflicts with Douty’s assertion that he regularly informed the board of directors on Scayl’s status financially, operationally, and developmentally.

In addition to this conflict in the evidence, plaintiff Devine proffers evidence that Douty made payments to Scayl’s creditors from his personal checking account. This too conflicts with Douty’s proffered assertion that at no point in time did Douty commingle company and personal funds, or use Scayl’s funds for any purpose other than a legitimate business purpose. The conflicting evidence presents a triable issue of material fact.

Douty goes on to argue that even if plaintiff Devine could establish a unity of interest that the separate personalities of the corporations no longer exist, plaintiff Devine must also establish that inequitable results will follow if the corporate separateness is respected. Douty cites Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539 where the court wrote, “The alter ego doctrine does not guard every unsatisfied creditor of a corporation but instead affords protection where some conduct amounting to bad faith makes it inequitable for the corporate owner to hide behind the corporate form.” Douty then goes on to cite to the same evidence above to argue that he acted in good faith because, among other things, “There is no evidence to suggest Douty engaged in any improper behavior with corporate assets, such as commingling or self dealing.” However, as discussed above, the evidence is in conflict and, thus, presents a triable issue of material fact.

Since there is at least a triable issue with regard to defendant Douty’s liability under an alter ego theory, the court need not address defendant Douty’s additional arguments regarding direct liability.

“Summary adjudication may also be granted as to a claim for punitive damages even though it does not dispose of an entire cause of action.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶10:41, p. 10-12 citing Code Civ. Proc. §437c, subd. (f)(1); Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.) Douty misunderstands his burden on summary adjudication. The burden lies initially with the moving party. Douty must affirmatively demonstrate that plaintiff Devine cannot establish oppression, fraud, or malice. (Code Civ. Proc., §437c, subd. (p)(2).) The burden does not shift to Devine until Douty meets his initial burden which he has not done in simply asserting, “Plaintiff has no evidence.”

Accordingly, defendant Douty’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

THE GLOBE HOMEOWNERS ASSOCIATION, a California non-profit corporation on behalf of itself, and in its representative capacity on behalf of its members,

Plaintiff,

vs.

THE GLOBE AT 2ND AND SANTA CLARA, L.P., a California Limited Partnership; CIM URBAN RE FUND, LLC, a California Limited Liability Company; and DOES 1 through 300, inclusive,

Defendants.

Case No. 17CV318405

TENTATIVE RULING RE: DEMURRER TO AND

MOTION TO STRIKE

FIRST AMENDED COMPLAINT

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on January 24, 2020, at 9:00 a.m. in Department 3. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
According to the allegations of the First Amended Complaint (“FAC”), filed on August 15, 2019, this case concerns the construction of a multi-unit residential project (the “Project”). (FAC, ¶ 17.) Plaintiff The Globe Homeowners Association (“Plaintiff”) represents itself and a class of homeowners who own improved real property at the Project. (Id. at ¶ 23.) Plaintiff alleges there are many deficiencies at the Project. (Id. at ¶ 34.)

The FAC sets forth the following causes of action: (1) Breach of Standards of Construction; (2) Breach of Contract and Violation of Equitable Servitudes; (3) Breach of Fiduciary Duty; (4) Breach of Construction Contracts; (5) Strict Liability; (6) Negligence; and (7) Breach of Implied Warranty.

Defendant Swinerton Builders (“Swinerton”) was added to the case as Doe 76 in the Complaint on April 19, 2019. Doe 76 is included in the FAC as one of the “CONTRACTORS.” (FAC, ¶ 16.) The first, fourth, sixth, and seventh causes of action are alleged against the CONTRACTORS. Now before the Court are Swinerton’s demurrer to and motion to strike portions of the FAC.

III. DEMURRER
IV.
A. Requests for Judicial Notice
B.
i. Swinerton’s Request
ii.
Swinerton requests judicial notice of the Complaint filed on October 30, 2017, in this action. The Court can take judicial notice of the Complaint as a court record. (Evid. Code, § 452, subd. (d).) Accordingly, Swinerton’s request for judicial notice is GRANTED.

iii. Plaintiff’s Request
iv.
Plaintiff requests judicial notice of the First Amended Complaint, filed August 15, 2019. Plaintiff’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

C. Discussion
D.
Swinerton demurs to the fourth, sixth, and seventh causes of action on the grounds that they fail to state facts sufficient to constitute causes of action and are uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

i. Fourth Cause of Action for Breach of Construction Contracts
ii.
Swinerton argues that the fourth cause of action is deficient because Plaintiff, which is not a party to a contract with Swinerton, has not pleaded any express contract terms showing that Plaintiff is a third-party beneficiary. In opposition, Plaintiff contends that it is a third-party beneficiary of Swinerton’s construction contract.

As explained in a somewhat similar case:

A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. The intent to benefit a third party must appear on the terms of the contract. As explained by well-reasoned case law: A third party should not be permitted to enforce covenants made not for his benefit, but rather for others. He is not a contracting party; his right to performance is predicated on the contracting parties’ intent to benefit him. The fact that the contract, if carried out to its terms, would inure to the third party’s benefit is insufficient to entitle him or her to demand enforcement. Whether a third party is an intended beneficiary or merely an incidental beneficiary to the contract involves construction of the parties’ intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.

(Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1410–1411 (emphasis in original; quotation marks, ellipses, and citations omitted).)

In the fourth cause of action, Plaintiff alleges that Swinerton entered into a written agreement or agreements “to provide services, labor and/or materials for the original design and/or construction of the Project….” (FAC, ¶ 93.) Plaintiff was in existence at the time the written agreements were executed. (Id. at ¶ 96.) Plaintiff is an intended beneficiary of the written agreements. (Id. at ¶ 98.)

Swinerton argues that Plaintiff did not allege in the original Complaint that it existed at the time Swinerton entered into the construction contract. Swinerton asserts that, although Plaintiff has not amended the Complaint to show when Plaintiff was formed, Plaintiff has intentionally omitted facts as to when the contract was executed. Swinerton states that the construction contract was executed in 2005 and that Plaintiff was not formed until 2007.

The Court must accept the allegations of the FAC as true and cannot read new unpleaded facts into the FAC. (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214 [a demurrer admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove the allegations does not concern the reviewing court].) Therefore, for purposes of the demurrer, the Court must accept Plaintiff’s allegation that it existed at the time Swinerton entered into the construction contract.

Swinerton also argues that Plaintiff has not sufficiently pleaded the terms or legal effect of the contract to show Plaintiff is an intended beneficiary. Plaintiff states that it does not have possession of the contract yet, so cannot plead the express terms. Plaintiff argues that it is only required to plead the legal effect of the contract.

“In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions, and it involves the danger of variance where the instrument proved differs from that alleged. Nevertheless, it is an established method, although infrequently employed.

(4 Witkin, California Procedure (5th ed. 2008) Pleading, § 519, p. 651.)

Although Plaintiff contends that it has pleaded the legal effect of the subject contract, Plaintiff’s allegation that it and its individual members were “the intended and/or express third party beneficiaries of said written agreements” is just a legal conclusion. Plaintiff alleges no facts to support this conclusion. The Court cannot accept a legal conclusion on demurrer. (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [on demurrer, a court does not assume the truth of contentions or conclusions of fact or law].)

Plaintiff has not sufficiently alleged that it is a third party beneficiary to Swinerton’s contract. Therefore, Plaintiff has not stated a claim for breach of contract. Swinerton’s demurrer to the fourth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state facts sufficient to constitute a cause of action.

iii. Sixth Cause of Action for Negligence
iv.
Swinerton argues that Plaintiff’s case falls within the Right to Repair Act and that the allegations of the sixth cause of action are a sham pleading because Plaintiff has changed the facts of the negligence cause of action to circumvent the exclusivity of the Act.

The Right to Repair Act is encompassed by Civil Code sections 895-945.5. (McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 246-247.) Civil Code section 896 states, in relevant part:

In any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction, design, specifications, surveying, planning, supervision, testing, or observation of construction, a builder, and to the extent set forth in Chapter 4 (commencing with Section 910), a general contractor, subcontractor, material supplier, individual product manufacturer, or design professional, shall, except as specifically set forth in this title, be liable for, and the claimant’s claims or causes of action shall be limited to violation of, the following standards, except as specifically set forth in this title. This title applies to original construction intended to be sold as an individual dwelling unit. As to condominium conversions, this title does not apply to or does not supersede any other statutory or common law.

In both the original Complaint and the FAC, Plaintiff alleged that there were many deficiencies in the Project. (Complaint, ¶ 34; FAC, ¶ 34.) In the Complaint, the sixth cause of action for negligence was based on those alleged defects. (Complaint, ¶¶ 108-112.) The sixth cause of action for negligence in the FAC now alleges it is based on “improvements at the Project, unrelated to and not arising from the original construction, development or design. . . .” (FAC, ¶ 110.) Swinerton contends that this change constitutes a sham pleading.

Generally, a court must assume the truth of the factual allegations of a complaint.

However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citations.] In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.

(Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.)

Plaintiff asserts that because Swinerton’s demurrer was filed after the FAC, the FAC was not filed to avoid the demurrer. Plaintiff argues further that the negligence cause of action does not suppress any facts and that the clarification simply specifies the timing of the construction.

Plaintiff’s contentions are not well taken: the negligence cause of action in the Complaint was based on the main list of alleged defects, while the negligence cause of action in the FAC is based on different “improvements.” Plaintiff has not explained this discrepancy, which appears to be an effort to plead around the exclusivity of the Right to Repair Act. The Court finds the allegations of the negligence cause of action in the FAC are a sham pleading.

Moreover, the allegation that the improvements at the Project were “unrelated to and not arising from the original construction” is conclusory. A demurrer does not admit conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) Plaintiff has not alleged facts supporting the assertion that Swinerton worked on separate improvements.

Further, the Court notes Civil Code “section 896 covers a multitude of defects not only in the residence but also in improvements such as driveways, landscaping, and damage to the lot, etc.” (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 897.) In other words, it is not apparent the “improvements” now alleged in the negligence cause of action in the FAC are not encompassed by the Right to Repair Act.

Accordingly, Swinerton’s demurrer to the sixth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state facts sufficient to constitute a cause of action.

v. Seventh Cause of Action for Breach of Implied Warranty
vi.
Swinerton argues that the seventh cause of action cannot be maintained because the FAC does not specify the type of warranty at issue and because Plaintiff does not properly allege it is a third party beneficiary.

Plaintiff cites to Gilbert Financial Corp. v. Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 69-70 for the proposition that there is an exception to the general rule that an implied warranty can arise only in favor of a party to the contract. Gilbert Financial recognized the right of a third party beneficiary to sue on a contract, but here, as discussed previously, Plaintiff has not sufficiently alleged that it is a third party beneficiary.

Plaintiff also cites to Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, for the proposition that associations have the requisite privity of contract and standing to sue as real parties in interest in all types of actions for damage to common areas. Windham at Carmel Mountain Ranch Assn. concerned whether an association could sue in its own name without adding individual owners of a common interest development. However, that is not the issue here; the issue is whether Plaintiff has alleged that it is a third party beneficiary to Swinerton’s contract.

As stated in connection with the fourth cause of action, Plaintiff has not sufficiently alleged that it is a third party beneficiary to Swinerton’s contract. Accordingly, Swinerton’s demurrer to the seventh cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state facts sufficient to constitute a cause of action.

V. MOTION TO STRIKE
VI.
A. Plaintiff’s Request for Judicial Notice
B.
Plaintiff requests judicial notice of the following:

(1) Declaration of Andrew M. Baugh in Support of Plaintiff The Globe Homeowners Association’s Opposition to Defendant Swinerton’s Demurrer to the First Amended Complaint, filed January 10, 2019; and
(2)
(3) Plaintiff’s First Amended Complaint, filed August 15, 2019.
(4)
While the Court could take judicial notice of the existence of the declaration and the date it was filed, the Court cannot take judicial notice of the truth of any hearsay statements in the document. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [the Court may not take judicial notice of the truth of hearsay statements in decisions and court files].) The existence of the declaration and the date it was filed are not relevant, so the declaration is not subject to judicial notice. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063 [although a court may judicially notice a variety of matters, only relevant material may be noticed].)

With regard to the First Amended Complaint, the Court can take judicial notice of the document as a court record. (Evid. Code, § 452, subd. (d).)

Accordingly, the request for judicial notice is GRANTED as to the FAC and DENIED as to the declaration.

C. Discussion
D.
Swinerton moves to strike all references to attorneys’ fees in the FAC. Specifically, Swinerton moves to strike pages 30, lines 10-15 and 38, line 1.

“In general, a prevailing party may recover attorney’s fees only when a statute or an agreement of the parties provides for fee shifting.” (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1248.) Plaintiff alleges in the fourth cause of action of the FAC that it is entitled to attorneys’ fees pursuant to Civil Code section 1717. Section 1717 provides, in relevant part:

In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.

As discussed in connection with the demurrer, Plaintiff cannot maintain the fourth cause of action for breach of contract as alleged and the demurrer to the fourth cause of action is sustained. Therefore, the motion to strike is MOOT as to page 30, lines 10-15. There is no other basis for attorneys’ fees alleged against Swinerton, so the motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND as to page 38, line 1.

The Court will prepare the final order if this tentative ruling is not contested.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Astrid G Nelson Megel et al vs The Standard Fire Insurance Company et al
Case No: 19CV01261
Hearing Date: Fri Jan 24, 2020 9:30

Nature of Proceedings: Motions to Compel:Further Answer to RFP, Set One; Attendance Testimony and Production at Depo, Req for Evidence, Issue and/or Monteary Sanctions

TENTATIVE RULING: Plaintiffs’ motion to compel further responses to Request for Production of Documents, Set One, is granted in part and denied in part, as set forth herein. Defendants’ further responses, and all responsive documents, shall be provided on or before February 14, 2020. The requests for monetary sanctions by both sides are denied. Plaintiffs’ motion to compel attendance, testimony, and production at depositions is denied. The parties shall meet and confer and proceed with the depositions of the custodian of records, the PMK witnesses, and Eric Shuman as proposed by defense counsel on December 16, 2019. The depositions shall be completed within 60 days of the date of this order, or as agreed to by the parties.

BACKGROUND:

This is an insurance coverage dispute involving a homeowner’s policy. Plaintiffs Astrid G. Nelson Megel, individually and as trustee of the Westside Irrevocable Trust, and Clifford Nelson are the owners of real property located at 726 West Pedregosa Street, Santa Barbara, California. The property, which is plaintiffs’ residence, includes two rental units above the detached garage. After the tenants of the two rental units filed a lawsuit against plaintiffs, alleging that the rental units were uninhabitable, forcing them to move out and incur damages, plaintiffs tendered the defense of the action to their homeowner’s insurer, defendants The Standard Fire Insurance Company and Travelers Commercial Insurance Company. Plaintiffs’ homeowner’s policy affords coverage for claims arising out of their ownership and/or use of the subject premises, including the rental units, but defendants denied coverage, citing an exclusion in the policy for rental units with more than two “boarders.” Plaintiffs’ complaint alleges causes of action against defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence.

On October 15, 2019, plaintiffs served their Request for Production of Documents, Set One, on defendants. After being granted an extension of time to respond to the discovery requests, defendants served their responses on November 27, 2019, including documents Bates Stamped 1-177. On December 10, 2019, defendants served a privilege log and supplemental documents Bates Stamped 178-210. Defendants served their verifications to the discovery on January 3, 2020. Plaintiffs contend that defendants’ document production is deficient and now move to compel further responses. Plaintiffs request evidence, issue, or monetary sanctions. Defendants oppose the motion and request monetary sanctions against plaintiffs.

In a separate motion, plaintiffs seek to compel the depositions of (1) Eric Shuman, the claims handler on plaintiffs’ file, (2) defendants’ custodian of records, and (3) the person most qualified to testify on specified subjects, including defendants’ underwriting and claims handling guidelines, the reasons defendants denied plaintiffs’ claim for defense and indemnity under the subject policy, and all other claims presented to defendants during the past ten years where coverage was denied due to the number of “boarders” at the insured location. On November 1, 2019, plaintiffs served their Notice of Deposition and Demand for Inspection and Production of Documents at Deposition, calling for the appearance, testimony, and documents by these witnesses on December 4, 2019, in Santa Barbara. On November 25, 2019, defense counsel notified plaintiffs’ counsel that he was unable to attend the depositions on December 4, 2019. On November 26, 2019, defendants served their objections to plaintiffs’ notice of depositions. Both sides request monetary sanctions against the other.

ANALYSIS:

1. Motion to Compel Further Responses to Requests for Production

On receipt of a response to a demand for inspection of documents, the demanding party may move for an order compelling a further response to the demand “if the demanding party deems that . . . [a] statement of compliance with the demand is incomplete . . . [or an] objection in the response is without merit or too general.” Code Civ. Proc. §2031.310, subd. (a). The motion to compel must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court. Code Civ. Proc. § 2016.040. The motion must also set forth “specific facts showing good cause” for the discovery. Code Civ. Proc. §2031.310, subd. (b)(1). If good cause is shown, the burden is then on the responding party to justify any objections or the failure to respond fully to the discovery. Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255.

Plaintiffs served their Request for Production of Documents, Set One, on defendants on October 15, 2019, document request Nos. 1-25. (Kar Dec., ¶11, Ex. 1.) After being granted a ten-day extension of time to respond, defendants served their responses to the requests on November 27, 2019, including documents Bates Stamped 1-177. (Kar Dec., ¶13, Ex. 3; Hanson Dec., ¶3.) The documents included copies of the subject insurance policy, the underwriting file, the claim file and notes, and correspondence between the parties, including plaintiffs’ tender letter and defendants’ denial letter. (Hanson Dec., ¶3.) On December 10, 2019, defendants served a privilege log and a supplemental document production Bates Stamped 178-210. (Kar Dec., ¶5.) Defendants served their verifications to the document requests on January 3, 2020. (Kar Dec., ¶5, Ex. A.) Plaintiffs contend that defendants’ document production is deficient and now move to compel further responses.

The specific requests for production at issue and the court’s ruling on defendants’ objections are as follows:

RFP No. 1: This request seeks all writings that concern or refer to insurance transactions involving plaintiffs from September 25, 2013, to the present. Defendants produced their complete underwriting file and plaintiffs’ homeowner’s policy. Plaintiffs contend that the response is deficient because no documents were produced evidencing the premiums paid, loss-runs, inspection reports, their original insurance application, and defendants’ approval of same. Defendants state that the inspection reports were produced (Bates Stamped 0054-0066) and that the other identified documents are not material because the sole issue in the case concerns the construction of the exclusion in the policy for rental units with two or more “boarders.” Defendants’ objections will be overruled. All writings relating to plaintiffs’ purchase and maintenance of the subject policy, including any endorsements, shall be produced.

RFP No. 2: This request seeks all underwriting manuals, policies, and guidelines for homeowner’s policies in effect from September 25, 2013, to the present. Defendants objected to, and refused to produce, the requested materials on the grounds that the information is not relevant to the issues in the case and not reasonably calculated to lead to the discovery of admissible evidence. Defendants’ objections will be overruled. Evidence about an insurer’s underwriting criteria is admissible where relevant to the issue of whether the insured made material misrepresentations while applying for insurance. See, Freeman v. Allstate Life Insurance Company (9th Cir. 2001) 253 F.3d 533, 537. Logically, if such evidence is relevant to whether the insured made material misrepresentations during the insurance application process, it is also relevant to whether the insurer made material misrepresentations at the same time. The underwriting manuals, policies, and guidelines shall be produced.

The parties shall prepare and sign a confidentiality agreement concerning the underwriting manuals, policies, and guidelines before they are produced.

RFP No. 3: This request seeks all claims manuals, policies, and guidelines for claims for defense and indemnity under homeowner’s insurance policies in effect from September 25, 2013, to the present. Defendants objected to, and refused to produce, the requested materials on the grounds that the information is not relevant to the issues in the case and not reasonably calculated to lead to the discovery of admissible evidence. Defendants’ objections will be overruled. The courts have held that claims manuals are admissible in coverage dispute litigation. See, Neal v. Farmers Insurance Exchange (1978) 21 Cal.3d 910, 923, fn. 2; Downey Savings & Loan Association v. Ohio Casualty Insurance Company (1987) 189 Cal.App.3d 1072, 1082; Moore v. American United Life Insurance Company (1984) 150 Cal.App.3d 610, 620, fn. 3. If claims manuals are admissible, it follows that they are discoverable. The claims manuals, policies, and guidelines for claims of the type presented in this case shall be produced.

The parties shall prepare and sign a confidentiality agreement concerning the claims manuals, policies, and guidelines before they are produced.

RFP No. 4: This request seeks defendants’ entire claim file relating to plaintiffs’ claim for defense and indemnity under the subject policy. Defendants produced the complete claim file, except documents noted on their privilege log, Bates Stamp Nos. 0001-0026, 0109-0111, and 0162-0177, and supplemental production Nos. 0178-0210. No further response will be required.

RFP No. 5: This request seeks all correspondence between plaintiffs and defendants concerning plaintiffs’ claim for defense and indemnity under the subject policy. Defendants produced all documents responsive to this request as part of the claim file and no further response will be required.

RFP No. 6: This request seeks all writings reflecting a claim by an insured for defense and indemnity from September 25, 2013, to the present under a homeowner’s policy that was denied because the allegations made by tenants against the insured arose out of the insured’s operation of rental units as a business. Defendants objected to, and refused to produce, the requested materials on the grounds that the information is not relevant and not reasonably calculated to lead to the discovery of admissible evidence as the sole issue in the case concerns the construction of an exclusion in the policy. Defendants’ objections will be overruled. In an action against an insurance company alleging unfair claims settlement practices, the plaintiff is entitled to discover whether the insurer engaged in a pattern of unfair practices on similar claims. Colonial Life & Accident Insurance Company v. Superior Court (1982) 31 Cal.3d 785, 792. The records of other similar claims shall be produced.

The names, addresses, and other identifying information of the insureds shall be redacted from the claims files before they are produced.

RFP No. 7: This request seeks all documents relating to or reflecting defendants’ relationship with defendant Baratto Sullivan & Company insurance brokers, or any of its agents or employees. Defendants objected to the request as vague and ambiguous. The objection will be sustained, in part. Defendants are ordered to produce all correspondence and other writings to or from Baratto Sullivan & Company relating to the subject insurance policy or plaintiffs.

RFP No. 8: This request seeks defendants’ underwriting file relating to the subject insurance policy. Defendants produced their complete underwriting file, as well as a certified copy of plaintiffs’ policy, except those documents noted on their privilege log, Bates Stamp Nos. 0027-0108. No further response will be required.

RFP No. 9: This request is duplicative of plaintiffs’ RFP No. 4. See, above.

RFP No. 10: This request is duplicative of plaintiffs’ RFP No. 6. See, above.

RFP No. 11: This request seeks all pre-risk inspection reports or investigations of the risks being insured under plaintiffs’ policy. Defendants produced all documents responsive to the request, Bates Stamp Nos. 0050-0068, and no further response will be required.

RFP No. 12: This request seeks all writings that reflect the amount of defendants’ reserve for loss and/or defense of the underlying lawsuit (Santa Barbara Superior Court Case No. 18CV01559). Defendants produced the requested information, Bates Stamp No. 0010, and no further response will be required.

RFP No. 13: This request seeks all writings that reflect or refer to the identity and title of the individuals who handled plaintiffs’ claim for defense and indemnity under the subject policy. Defendants produced the requested information, Bates Stamp No. 0014, and no further response will be required.

RFP No. 14: This request seeks a copy of the subject policy. Defendants produced a certified copy of the policy, Bates Stamp Nos. 0112-0160, and no further response will be required.

RFP No. 15: This request seeks all writings relating to defendants’ document retention or destruction policies. Defendants objected to, and refused to produce, the requested documents on the grounds that the information is not relevant to the issues in the case and not reasonably calculated to lead to the discovery of admissible evidence. Defendants’ objections will be sustained. Plaintiffs have failed to set forth “specific facts showing good cause” for the discovery. Code Civ. Proc. §2031.310, subd. (b)(1).

RFP No. 16: This request seeks defendants’ organizational charts from January 1, 2013, to the present. Defendants objected to the request on relevancy grounds. The objection will be sustained. Plaintiffs have been provided with the identity and title of the individuals who were responsible for handling plaintiffs’ claim. See RFP No. 12, above. No further response will be required.

RFP No. 17: This request seeks all writings utilized by defendants to interpret their guidelines, internal policies, and procedures. Defendants responded that no responsive documents exist. No further response will be required.

RFP No. 18: This request seeks all writings that reflect defendants’ interpretation of the policy language at issue. Defendants produced a copy of the applicable denial letter, Bates Stamp Nos. 0022-0026, and copies of claims notes, Bates Stamp Nos. 0006-0014. No further response will be required.

RFP No. 19: This request seeks all training materials used by defendants’ claims adjusters from September 25, 2013, to the present. Defendants objected to the request on relevancy grounds and the objection will be sustained. Plaintiffs have failed to set forth “specific facts showing good cause” for the discovery. Code Civ. Proc. §2031.310, subd. (b)(1). No further response will be required.

RFP No. 20: This request seeks all advertising materials used by defendants for the sale and/or underwriting of homeowner’s policies from September 25, 2013, to the present. Defendants objected to the request as overbroad and not reasonably calculated to lead to the discovery of admissible evidence. The request is overbroad and the court will sustain defendants’ objection. No further response will be required.

RFP No. 21: This request seeks all writings relied upon by defendants in denying defense and indemnity in the underlying lawsuit (Santa Barbara Superior Court Case No. 18CV01559). Defendants produced a certified copy of plaintiffs’ homeowner’s policy, Bates Stamp Nos. 0112-0160, a copy of the underlying complaint filed against plaintiffs, and copies of various claims materials, Bates Stamp Nos. 0001-0014. No further response will be required.

RFP No. 22: This request is duplicative of RFP No. 21 and no further response will be required.

RFP No. 23: This request seeks all documents relied upon by defendants in defining the term “boarders” in the subject policy. Defendants responded that the term “boarders” was construed according to its “usual and customary meaning.” Defendants also relied upon plaintiffs’ policy, Bates Stamp Nos. 0112-0160, the underlying complaint filed against plaintiffs, and various materials in the claim file, Bates Stamp Nos. 0001-0014. No further response will be required.

RFP No. 24: This request seeks all documents relied upon by defendants in defining the term “roomers” in the subject policy. Defendants responded that the term “roomers” was construed according to its “usual and customary meaning.” Defendants also relied upon plaintiffs’ policy, Bates Stamp Nos. 0112-0160, the underlying complaint filed against plaintiffs, and various materials in the claim file, Bates Stamp Nos. 0001-0014. No further response will be required.

RFP No. 25: This request seeks all writings pertaining to any investigation of coverage for the underlying lawsuit (Santa Barbara Superior Court Case No. 18CV01559). Defendants produced their entire claim file, except for documents noted on their privilege log, Bates Stamp Nos. 0001-0026, 0109-0111, and 0162- 0177, and supplemental production 0178-210. No further response will be required.

Code of Civil Procedure Section 2031.310, subdivision (h) provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” The court finds that both sides should be sanctioned since court intervention should not have been necessary on all 25 requests for production. While certain of the requests clearly require a further response, others were clearly rendered moot by the supplemental responses that were provided. Given that both sides acted without substantial justification in the motion, the opposing requests for sanctions will be denied.

For the reasons set forth above, plaintiffs’ motion for order compelling further responses to Request for Production of Documents, Set One, is granted in part and denied in part. Defendants’ further responses, and all responsive documents, shall be provided on or before February 14, 2020.

2. Motion to Compel Depositions and Document Production

Where a party fails to comply with a deposition notice, the party serving the notice may bring a motion to compel. Code of Civil Procedure Section 2025.450, subdivision (a), provides:

“If after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.”

On November 1, 2019, plaintiffs served their Notice of Depositions and Demand for Production of Documents, with a deposition date of December 4, 2019, in Santa Barbara, California. (Kar Dec., ¶6, Ex. 1.) On November 25, 2019, defense counsel notified plaintiffs’ counsel that he was unable to attend the depositions on December 4, 2019, and requested that the depositions be rescheduled. (Hanson Dec., ¶4.) On November 26, 2019, defendants served their objections to plaintiffs’ deposition notice. (Kar Dec., ¶11, Ex. 6.) Defendants objected that the deposition notice of the custodian of records failed to “describe with reasonable particularity the matters on which the examination is requested.” Code Civ. Proc. §2025.230. In addition, the deposition notice of the PMK witnesses was improper in requiring the presence of a “manager, managing agent, officer, or director” when, by law, a corporate defendant is entitled to select those of its “officers, directors, managing agents, employees, or agents” who are most qualified to testify on its behalf. Ibid. Finally, the deposition notice of Eric Shuman, defendants’ claims adjuster, improperly set Mr. Shuman’s deposition for Santa Barbara, which is more than 150 miles from Mr. Shuman’s residence in Yolo County, California. Code Civ. Proc. §2025.250, subd. (a).

The parties met and conferred on December 16, 2019, with regard to the depositions. At that time, defense counsel agreed to produce Mr. Shuman in Santa Barbara (or another location convenient in Southern California). (Hanson Dec., ¶5.) Defense counsel also agreed to produce a custodian of records for defendants once plaintiffs identified which documents needed to be produced. (Ibid.) With regard to the corporate PMK witnesses, defendants agreed to produce responsive witnesses in California as soon as plaintiffs determined which of the matters specified in the notice would be the subject of examination. (Ibid.) The deposition notice lists twenty-two topics or categories for examination (topics “a – v”), ranging from defendants’ underwriting guidelines to their claims handling guidelines to their reasons for denying plaintiffs’ claim for defense and indemnity to the compensation paid to their general agents, brokers, and producers. (Kar Dec., ¶6. Ex. 1.) Given the range of topics, defendants may have to designate more than one PMK witness.

The court finds that defendants served valid objections to plaintiffs’ deposition notice and that there is no basis for plaintiffs’ motion to compel depositions and documents, or their request for sanctions. Tellingly, plaintiffs do not assert anywhere in their papers that their deposition notice was not defective. Instead, without presenting any proof, plaintiffs accuse defendants of having “an ulterior purpose for refusing to appear, testify, and produce at deposition.” (Motion, p. 4:24-25.) This isn’t constructive. The parties shall meet and confer and proceed with the depositions of the custodian of records, the PMK witnesses, and Mr. Shuman as proposed by defense counsel on December 16, 2019. The depositions shall be completed within 60 days of the date of this order, or as agreed to by the parties.

With the above understanding, plaintiffs’ motion to compel attendance, testimony, and production at depositions will be denied.