Christina Acosta vs. Global Girls Rising

Opposition

Cal. Super. - 4th Dist.December 18, 2015

BH L N N O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LARA & LUNA, APC. Edward Lara, California Bar No. 210766 Linda Luna Lara, California Bar No. 240809 Inna Kaminer, California Bar No. 311749 Peter “Phuc” Le, California Bar No. 313323 16700 Valley View, Suite 170 La Mirada, California 90638 Telephone: 562-444-0010 Facsimile: 949-288-6953 ELara@lLaral.unal.aw.com LLara@laral.unal.aw.com IKaminer@Laral.unaLaw.com PLe@]lLaral.unal.aw.com Attorneys for Plaintiff, CHRISTINA ACOSTA ELECTRONICALLY FILED Superior Court of California, County of Orange 10/06/2017 at 12:44:00 PM Clerk of the Superior Court By Sarah Loose Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CHRISTINA ACOSTA, an individual, Plaintiff, Vv. GLOBAL GIRLS RISING; GLOBAL G.L.O.W. and DOES 1-50, inclusive, Defendants. CASE NO: 30-2015-00826041-CU-WT-CJC Unlimited Civil Matter Hon. William Claster Dept. CX102 PLAINTIFE’S OPPOSITION TO DEFENDANT’S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS; DECLARATION OF INNA KAMINER IN SUPPORT THEREOF DATE: 10/20/17 TIME: 9:00 A.M. DEPT. CX102 RESERVATION NO. 72670713 Complaint Filed: January 8, 2015 Trial Date: November 6, 2017 PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS wn A L N Oo 0 NN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiff CHRISTINA ACOSTA hereby opposes the Motion to Amend Responses to Request for Admission filed herein by defendant GLOBAL G.L.O.W. (hereinafter “Defendant™). This opposition is based on the pleadings, the accompanying declaration of Inna Kaminer, records and files in this action, the attached Memorandum of Points and Authorities, and on any such oral and documentary evidence as may be presented at the hearing on the motion. DATED: October 5, 2017 LARA & LUNA APC By: EDWARD LARA C LINDA LARA INNA KAMINER Attorneys for Plaintiff CHRISTINA ACOSTA -2- PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS wh RA W N oO ee N N 11 12 13 14 15 16 17 18 19 20 21 2% 23 24 25 26 i 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff initiated litigation with three causes of action 1) Violation of Labor Code Section 1102.5, 2) Termination in Violation of Public Policy and 3) Violation of PAGA based on the Defendant’s unlawful mandated reporting policies and procedures as well as retaliation against Plaintiff for reporting the violation of said policies and procedures. Plaintiff served numerous discovery requests to oppose Defendant’s Motion for Summary Judgment and Prepare for Trial. Plaintiff served Requests for Admission, Set One (“RFA1”) on February 24, 2016. (Exhibit 1 to Kaminer Declaration (“Kaminer Dec.”) Defendant served responses to RFA. (Exhibit 2 to Kaminer Dec.). Defendant served a Supplemental Response to RFA1 on May 6, 2016. (Exhibit 3 to Kaminer Dec.) Defendant served a Second Supplemental Response to RFA on August 22, 2016 changing its responses to RFA Nos. 11 and 13 without leave of court. (Exhibit 4 to Kaminer Dec.). Plaintiff served Requests for Admission, Set Two (“RFA2”) on June 17, 2016 . (Exhibit 5 to Kaminer Dec.) Defendant Responded to RFA2 on August 5, 2016. (Exhibit 6 to Kaminer Dec.). Defendant served a Supplemental Response to RFEA2 on March 27, 2017 changing responses to RFA Nos. 18, 20-21, 23, 26-29 without leave of court. (Exhibit 7 to Kaminer Dec.). On August 30, 2017 Plaintiff’s counsel emailed Defendant and explained that unilaterally withdrawing or amending an admission is only possible after leave of court and asking if Defendant was going to seek leave of court. (Exhibit 8 to Kaminer Dec.) Defendant did not respond to Plaintiff’s email dated August 30, 2017 and instead simply filed its Motion to Amend Requests for Admission on September 27, 2017. Plaintiff does not seek to oppose Defendant’s changing its Denials to Admissions for RFA Nos. 11, 13 or 18. As such this opposition will address RFA Nos. 20-21, 23 and 26-29 which should not be amended as amendment would cause prejudice to Plaintiff. IL. DISCUSSION As a general rule an admission is conclusive in the action as to the party making it. Code Civ. Proc., § 2033.410, subd. (a); Scalfv. D.B. Log Homes, Inc. (2005) 128 Cal. App.4th 1510, 1522, ; see also Lackner v. North (2006) 135 Cal.App.4th 1188, 1203, fn. 6. Absent leave of court to amend or -3- PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS Oo 9 oN un Bs 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 withdraw the admission, no contradictory evidence may be introduced. (See Midwest Television, Inc. v. Scott, Lancaster, Mills & Atha, Inc. (1988) 205 Cal. App.3d 442, 451-455; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) 9 s 8:1387, 8:1388, p. 8G- 31) Cal. C.C.P. § 2033.300 provides a party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits. Ca. Discovery Citations § 6:26. Here Defendant’s motion should be denied as the original responses to RFA Nos. 20-21, 23, and 26-29 were not a result of mistake, inadvertence or excusable neglect and Plaintiff will be substantially prejudiced in maintaining her action should Defendant be allowed to withdraw its admissions. a. DEFENDANT’S MOTION TO AMEND RFA NOS. 20-21, 23, AND 26-29 , SHOULD BE DENIED BECAUSE DEFENDANT’S ORIGINAL RESPONSES TO WERE NOT A RESULT OF MISTAKE, INADVERTANCE, OR EXCUSABLE NEGLECT As specifically set out above, the court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect. Cal. C.C.P. § 2033.300. Defendant claims that it should be given leave to withdraw the admissions to RFA Nos. 20-21, 23, and 26-29 and amend the responses with denials as the responses are not longer accurate, but were accurate at the time. However, this is not proper under Cal. C.C.P. § 2033.300, as Defendant’s original responses were not a result of mistake or excusable neglect, but were rather true at the time (and will always be true). The court in Burch v. Gombos (2000) 82 Cal. App.4th 352, specifically dealt with this issue. In Burch, in response to a Request for Admission (“RFA”) asking an admission that the party did not have evidence to a certain issue, Respondents responded “Admit.” Then, at trial, Respondents sought to introduce evidence for that very issue. Appellants objected stating that the issue was deemed admitted and to bring evidence of said issue, Respondents had to have sought leave to withdraw the -4- PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS SS Oo 0 N N N Wn 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 admission. The court held that there was no basis for seeking leave as the Admission was true. The court stated: Nothing in the text of the statute creates any ongoing duty to update responses. Indeed, the statute authorizes amending or withdrawing a response only where a court finds the original admission “was the result of mistake, inadvertence, or excusable neglect.” (Code Civ.Proc., § 2033, subd. (m).) Redwood Empire would not have met that standard here because there was nothing mistaken, inadvertent, or neglectful about the original response....When Redwood Empire verified and served its response to that present tense question in April of 1997, it gave the answer that was true at the time. It was still true at the time of trial (and it will always be true) that in April of 1997 Redwood Empire had no evidence of pre-1972 recreational use of the road. Thus, there was neither a need nor even an applicable mechanism for Redwood Empire to amend or withdraw its response to the RFA in question. Burch v. Gombos (2000) 82 Cal. App.4th 352, 359. Just as in Burch, Defendant’s admission is true as of the time it was answered. Defendant’s answer was not a result of mistake, it was a result of truth. There was nothing neglectful or inadvertent about the response, it was true at the time of the response and will always be true that as of the time of the response (from November 2013 through August 2016) Defendant did not provide its employees with mandated reporting materials. Defendant admits as much in its motion, stating “Global admitted the requests, which were accurate at the time.” (Motion to Amend RFA, pg. 7, lines 19-20). As such, Defendant should not be allowed to amend the response, but rather can present evidence that now certain documents are provided to employees (which was not true at the time of the admission). As Defendant’s Admissions to RFA Nos. 20-21, 23, 26-29 were not due to inadvertence, mistake or excusable neglect, its Motion should be denied as to these responses. b. ALLOWING DEFENDANT TO WITHDRAW ITS ADMISSIONS TO RFA NOS. 20-21, 23, AND 26-29 WOULD PREJUDICE PLAINTIFF The court may permit withdrawal or amendment of an admission enly if it determines that that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits. Cal. C.C.P. § 2033.300. Defendant claims that Plaintiff will not be prejudiced because the discovery was served months ago. However, Plaintiff will suffer severe prejudice if Defendant is allowed to amend RFA Nos. 20-21, 23, and 26-29 less than a month prior to trial. As Defendant never sought leave to withdraw its original admissions, Plaintiff has not relied on the supplemental responses. Thus, in preparing for trial, Plaintiff has relied on responses which -5- PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS LO 0 NN S Y nn BA W N = N N N O N N N N N N e e ee e m e m e k ee d p e ee e d 0 ~~ O&O Wn A W O N = CC YO N N N nn B A W N = CO Admit that Defendant did not provide Mandated Reporting Materials to its employees in violation of state statute. RFA Nos. 20-21, 23, and 26-29 seek admissions that from November 1, 2013 through the present (i.e. the date of service and response to RFA2-June/August of 2016) Defendant did not provide employees with mandated reporting materials as required by law. Defendant’s changing its admission to a denial at this juncture is prejudicial as it indicates that Defendant provided employees with materials throughout that time period, whereas the admission in August of 2016 clearly shows that no such materials were provided by Defendant. This is a key issue and a violation of mandated reporting laws-laws which Plaintiff seeks to establish were violated by Defendant throughout Plaintiffs tenure. As such, the Admission being changed to denial is not due to a mistake, but rather a calculated measure to prejudice Plaintiff’s case at trial and should not be allowed. Had Defendant sought leave earlier, perhaps Plaintiff could have sought additional discovery clarifying when Defendant purportedly started complying with the Mandated Reporting Statutes in providing employees with materials as required under the statute. However, now discovery is cutoff and Plaintiff will be severely prejudiced if Defendant is allowed to simply change admissions with are absolutely true into denials. This is clearly and substantially prejudicial to Plaintiff and as such, Defendant’s motion as to RFA Nos. 20-21, 23, and 26-29 should be denied. Im. CONCLUSION Based on the forgoing, Plaintiff respectfully requests that this Court denyDefendant’s Motion to Amend Responses to Requests for Admission Nos. 20-21, 23, and 26 Dated: October 5, 2017 LARA & L EDWARD LARA, Esq. LINDA LARA, Esq. INNA KAMINER, Esq. Attorneys for Plaintiff CHRISTINA ACOSTA -6- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS