Response ReplyCal. Super. - 6th Dist.July 19, 20161 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 1 OF 8 SANJIV N. SINGH, A PROFESSIONAL LAW CORPORATION Sanjiv N. Singh [SBN 193525] 1650 South Amphlett Blvd. Suite 220 San Mateo, CA 94402 Tel.: (650) 389-2255 ssingh@sanjivnsingh.com Attorneys for Defendant Summit Estate, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION BRYAN GARRISON, an individual, Plaintiff, vs. SUMMIT ESTATE, INC.; and DOES 1-20 inclusive, Defendant. Case No.: 16CV297817 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION SUMMIT ESTATE, INC., a California Corporation Cross-Complainant, vs. BRYAN GARRISON, an individual, Cross-Defendant. Hearing Date: June 6, 2019 Judge: Hon. Sunil R. Kulkarni Department: 8 Complaint Filed: July 19, 2016 Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/29/2019 11:30 PM Reviewed By: A. Nakamoto Case #16CV297817 Envelope: 2945387 16CV297817 Santa Clara - Civil A. Nakamoto 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 2 OF 8 MEMORANDUM A. Introduction Plaintiff’s opposition once again sets forth his own re-telling of his employment and termination at Summit Estate, Inc. without providing any other evidence supporting Plaintiff’s claims. Years after Plaintiff first brought this suit, Plaintiff still cannot provide sufficient evidence to even establish his claims, let alone support his allegations. B. Plaintiff Bryan Garrison’s Opposition Exceeds Page Limits and Therefore Should Not Be Considered. California Rule of Court (CRC) 3.1113(d) states that in a motion for summary judgment or adjudication, “no opening or responding memorandum may exceed 20 pages.” Additionally, CRC 3.1113(g) states that, “a memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendant Summit Estate’s Motion for Summary Judgment, or In the Alternative, Summary Adjudication (“Opposition”) is 24 pages long, excluding the caption page, table of contents, and table of authorities, and thus should be treated as a late-filed paper. California Courts have held that the “trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission. ” (citations omitted) Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 765. Plaintiff has not filed nor shown good cause for his oversized, and therefore late, filed opposition. Therefore, Defendant respectfully requests that the Court refuse to consider Plaintiff’s Opposition. C. Defendant’s Separate Statement Complies with Applicable Procedural Requirements Defendant has substantially complied with applicable procedural requirements. Defendant sets forth evidence supporting each of its statements of material fact. Plaintiff misstates Rio Linda 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 3 OF 8 Unified School Dist. V. Sup. Ct. (Diaz) 52 CA5th 732, 740 to argue that Defendant was generally required to present all material evidence. However, the Rio Linda court actually held that, “if a party contends some particular issue of fact has no support in the record, it must set forth all the material evidence on the point and not merely the evidence favorable to it.” Defendant’s separate statement does not include any contention that a particular fact has no support. Defendant’s separate statement of Undisputed Material Facts (“UMF”) contains material facts that are directly relevant to Plaintiff’s claims. Moreover, Defendant’s separate statement contains precise statements of UMF that are relevant and material to Plaintiff’s claims. The statements are not compound and were drafted to prevent Defendant from disputing the statement on any technicalities-which Defendant has done anyway. Furthermore, “[t]he purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties‘ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 843, 107 CR2d 841, 855. Even where Defendant’s separate statement may be deficient, California courts have held that, “in the exercise of this discretion, the trial court should consider whether the facts are “relatively simple” and were “clearly called to the attention of court and counsel”; whether “evidence is not referenced, is hidden in voluminous papers, and is not called to the attention of the court at all”; and, most importantly, whether, despite the absence of a proper separate statement, the opposing party has sufficient notice of the evidence it must dispute to defeat the motion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316; see also Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.) Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 652. In this case, Plaintiff’s causes of action are logically grouped together by Hours and Wages claims and Disability Discrimination claims. Defendants’ separate statement of material facts groups Defendant’s statements of undisputed material facts under each group of actions, rather than listing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 4 OF 8 every claim and creating unnecessary redundancy. Plaintiff had sufficient notice of the evidence needed to defeat Defendant’s motion. Finally, Defendant has asserted, and preserved, its affirmative defenses throughout this action. Ultimately, Defendant’s motion and separate statement include undisputed material facts which show that Defendant is entitled to judgment as a matter of law. D. Plaintiff’s Opposition to Defendant’s Motions for Summary Adjudication of Plaintiff’s Disability-Related Claims Is Not Supported by Evidence Plaintiff failed to show that Plaintiff was subject to disability discrimination. The UMFs which Plaintiff explicitly agree are undisputed clearly show that there is no genuine dispute with respect to Plaintiff’s discrimination claim. It is well established that, “the initial burden rests primarily upon the employee…to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’” Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013. Plaintiff worked for Defendant, agreed to follow the policies, violated such policies, went on disability leave, failed to engage with Defendant at all about his disability or accommodation needs, continued to remain on total disability leave by submitting doctors notes each time his disability leave was coming to an end, and was ultimately terminated: i. Plaintiff began working for Summit Estate in 2011 (UMF 1) but does not recall the dates he worked for Summit Estate as a Facilities Manager (UMF 2) ii. Plaintiff was aware of and agreed to follow the Summit Estate Code of Ethics and Employee Handbook and Policies (UMF 4) iii. Plaintiff was on a leave of absence from September 22, 2015 to November 16, 2015 (UMF 5) and then returned to his usual responsibilities when he returned from this disability leave (UMF 6) iv. Plaintiff provided another employee with the company debit card (UMF 10) v. Summit gave verbal and written warnings to Plaintiff prior to his January 2016 disability leave (UMF 14) and Plaintiff refused to sign the written warning issued to him on January 12, 2016 (UMF 16) vi. Plaintiff went on disability leave on January 13, 2016 based on a doctor’s note that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 5 OF 8 Plaintiff was “temporarily and totally disabled from his employment,” and did not prescribe alternative physical limitations or accommodations to allow Plaintiff to work nor specify a length of time that Plaintiff would be disabled and unable to work (UMF 17-19) vii. Plaintiff continued on disability leave based on a January 20, 2016 work status report from another doctor which also did not provide alternative physical limitations or work accommodations to allow Plaintiff to work (UMF 20-21) viii. Plaintiff continued on disability through February 24, 2016 when Plaintiff provided another doctor’s note stating that Plaintiff was, “temporarily and totally disabled from his employment” and did not prescribe alternative physical limitations or accommodations to allow Plaintiff to work (UMF 22-23) ix. All Summit employee received nondiscrimination policies (UMF 31) x. Plaintiff worked for Summit Estate as an at-will employee (UMF 32) For nearly all other UMFs related to Plaintiff’s disability claims which Plaintiff does dispute, Plaintiff is only able to provide out-of-context or barely-related deposition excerpts and email as evidence of the so-called dispute. For example, Plaintiff disputes that: i. Plaintiff was an “independent contractor” in 2011 citing to deposition transcripts of Paul Ponomarenko admitting that he didn’t know whether Plaintiff had a business license in 2011 (UMF 1) ii. Plaintiff became an employee of Summit Estate in or around January 2013 citing to deposition transcripts of Paul Ponomarenko admitting that Plaintiff began “providing services” as a weekend chef and as an independent contractor (UMF 3) iii. Plaintiff was provided with resources to accommodate his work restrictions based on deposition transcripts of Paul Ponomarenko admitting other employees were requested to assist Plaintiff, that Ponomarenko made the Summit Estate program director aware of Plaintiff’s limitations, and that Ponomarenko was not physically on-site to observe whether accommodations were provided (UMF 4) iv. During Plaintiff’s employment with Summit, Plaintiff did not discuss any physical or psychological limitations of his disability, request any accommodations, or have any significant communications with Summit citing to Plaintiff’s own testimony, the various doctor’s notes (which provide no details regarding accommodation), Plaintiff’s two brief emails to Summit (which provide no details regarding accommodations), and Plaintiff’s worker’s compensation applications (which provide no details regarding accommodation) (UMF 24-25, 29). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 6 OF 8 Plaintiff has failed to provide a single piece of evidence to show that he communicated or engaged at all with Defendant regarding his purported disability. The fact that Plaintiff returned from a short disability leave in November 2015, with a doctor’s note explicitly outlining his restrictions and necessary accommodations stands in stark contrast to Plaintiff’s indefinite leave of absence in January 2016. Plaintiff has failed to provide any evidence that Defendant’s actions were discriminatory. Therefore, Defendant’s motion for Summary Adjudication of Plaintiff’s disability-related claims should be granted. E. Plaintiff’s Opposition to Defendant’s Motions for Summary Adjudication of Plaintiff’s Wage and Hour Related Claims Is Not Supported by Evidence. Plaintiff’s opposition to Defendant’s motion for summary adjudication of his wage and hours claims fails for the same lack of evidence as above. Plaintiff expressly states that the following are undisputed: i. Plaintiff began working for Summit Estate in 2011 (UMF 35) but does not recall the dates he worked for Summit Estate as a Facilities Manager (UMF 36); ii. Plaintiff worked and provided invoices for the work he performed as a Weekend Relief Chef. (UMF 38) iii. Plaintiff was aware that he was obligated to take meal and rest breaks. (UMF 42) iv. Plaintiff did not keep any records of the hours he claims he worked overtime. (UMF 47) Plaintiff’s disputes to the other UMFs relating to his wages and hours claims are insufficiently supported by Plaintiff’s own deposition transcripts and responses to interrogatories. It is well established that a responding party may not use its own discovery responses in its own favor. See Great American Ins. Companies v. Gordon Trucking (2008) 165 Cal.App.4th 445, 450. First, Plaintiff did not provide any evidence that he was misclassified. Plaintiff incorrectly asserts that he was not working as an independent contractor simply because he did not have a business license. Plaintiff’s argument that he was misclassified as exempt because he had similar 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 7 OF 8 duties as a non-exempt employee fails because Plaintiff did not provide evidence that such duties bar him from being an exempt employee. Additionally, even if Plaintiff were misclassified, Plaintiff’s FLSA wages and hours claims fail because he still has not met his initial burden: An employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. Anderson v. Mt. Clemons Pottery Co., 328 U.S. at 686-688. Plaintiff has not provided any evidence showing the amount and extent of any work he performed for which he was improperly compensated. On the other hand, Defendant has provided several deposition excerpts of witnesses testifying that Plaintiff regularly came to work late and left early. Additionally, Plaintiff admitted that he was aware of Summit’s Employee Policies, one of which is that employees are required to take meal and rest breaks (UMF 42). Plaintiff has not provided any evidence that Defendant knowingly or for that matter in any manner deprived Plaintiff of his meal and rest breaks. F. Plaintiff’s Opposition to Defendant’s Motions for Summary Adjudication of Plaintiff’s Claims for Violation of Business and Professions Code Is Not Supported By Evidence. Plaintiff has failed to provide any evidence that he was misclassified, that Defendant failed to provide meal or rest breaks, and failed to pay overtime compensation. Therefore, Plaintiff likewise would not be entitled to pursue his claims for waiting time penalties, failure to provide accurate wage statements, civil penalties and Private Attorneys General Act penalties. G. Plaintiff’s Additional Statements of Undisputed Material Facts Are Not Sufficient To Create A Dispute of Material Fact Because Plaintiff Failed to Sufficiently Establish that He is Owed Compensation for Overtime or Missed Rest and Meal Breaks 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT AND CROSS-CLAIMANT SUMMIT ESTATE, INC.’S REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION PAGE 8 OF 8 Finally, while Plaintiff provided additional statements of purportedly undisputed facts, and Defendant has responded to these “facts”, none of Plaintiff’s additional statements are material for the purposes of Defendant’s motion for summary judgment or adjudication. In fact, a majority of Plaintiff’s additional UMFs were submitted in Plaintiff’s Motion for Summary judgment early in this case, which this Court found were not sufficient to grant Plaintiff’s motion. Plaintiff has failed to establish the fundamental facts that underly each of Plaintiff’s claims, including: (i) the amount and extent of the work for which he is allegedly owed additional compensation, (ii) that Defendant failed to provide any meal or rest breaks; and (iii) that Defendant knew anything about Plaintiff’s purported disability other than Plaintiff’s need for a continuous leave of absence. H. Conclusion For the reasons set forth above, Defendant respectfully requests that the Court grant Summary Judgment to Defendants. DATED: May ____, 2019 Respectfully submitted, SANJIV N. SINGH, A PROFESSIONAL LAW CORPORATION Sanjiv N. Singh Attorneys for Defendant Summit Estate, Inc.
