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Alfred Rago v. Karl Storz Imaging, Inc

Case Number

22CV05146

Case Type

Civil Law & Motion

Hearing Date / Time

Wed, 02/21/2024 - 10:00

Nature of Proceedings

Motion of Defendant for Summary Judgment or for Summary Adjudication

Tentative Ruling

For Plaintiff Alfred Rago: David P. Myers, Ann Hendrix, Morgan J. Good, The Myers Law Group, A.P.C.                            

For Defendant Karl Storz Imaging, Inc.: Nicole Kamm, Taylor R. Lee, Fisher & Phillips LLP               

RULING

For the reasons set forth herein, the motion of Defendant Karl Storz Imaging, Inc., for summary judgment or alternatively for summary adjudication is denied in its entirety.

The MSC date of 3/1/24 and the Trial Date of 3/27/24 are confirmed. Do not request a continuance. The event leading up to the filing of the complaint occurred on 7/26/22; the case was filed in 12/2022; the trial date was set on 5/3/23; this is a jury trial; the Court has reserved the following; [all pretrial documents due 3/20 including in limine motions; jury instruction; witness lists, exhibit lists; jury verdict forms]; the Court’s Pretrial Orders will be issued prior to the pretrial; the pretrial is on 3/27/24 at 11:30am; jury trial days are 3/28; 3/29; 4/2; 4/4; 4/5; 4/8; 4/9; 4/11; 4/12; 4/15; 4/16 = 11 days.

Background

On December 30, 2022, Plaintiff Alfred Rago filed his original complaint in this action against Defendant Karl Storz Imaging, Inc. (KSI). The complaint alleges nine causes of action: (1) disability discrimination; (2) failure to accommodate disability; (3) failure to engage in the interactive process; (4) violation of California Family Rights Act; (5) disability harassment, hostile work environment; (6) retaliation (requesting accommodation); (7) retaliation; (8) failure to prevent discrimination, harassment, and retaliation; and (9) wrongful termination in violation of public policy.

On February 6, 2023, KSI filed its answer to the complaint generally denying the allegations thereof and asserting 34 affirmative defenses.

On December 15, 2023, KSI filed its motion for summary judgment or alternatively for summary adjudication. KSI seeks to summarily adjudicate each of Rago’s nine causes of action, as well as Rago’s claim for punitive damages. In support of the motion, KSI has filed its separate statement with 130 separate statement facts common to each adjudication and 12 additional facts specific to particular adjudications.

The motion is opposed by Rago.

Analysis

(1)        Summary Judgment and Summary Adjudication

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the Court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the Court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the Court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more Defendants either owed or did not owe a duty to the Plaintiff or Plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“For purposes of motions for summary judgment and summary adjudication: [¶] … [¶] (2) A Defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the Defendant … has met that burden, the burden shifts to the Plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The Plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘ “view the evidence in the light most favorable to Plaintiff[] …” and “liberally construe Plaintiff[’s] evidentiary submissions and strictly scrutinize Defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in Plaintiff[’s] favor.” ’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

Assuming without deciding that KSI has met its initial burden on summary adjudication as to each of the requested adjudications, it is clear that there are triable issues of fact that preclude summary adjudication and summary judgment. For example, separate statement fact 3 is: “In 2018 and 2019, Rago’s performance declined, particularly with his ability to manage employees.” The evidence presented in support of this separate statement fact includes exhibits 1 and 3 to the deposition of Susie Loza, which are 2018 and 2019 “Performance Dialogues.” These documents have overall performance ratings of three stars, “solid performance.” (Kamm decl., pp. 124, 131.) The 2015, 2016, and 2017 Performance Dialogues also state an overall performance rating of three stars, “solid performance.” (Rago decl., ¶ 2 & exhibit pp. 233, 237, 244.) Under the standards for summary judgment motions, this evidence is sufficient to dispute this separate statement fact that Rago’s performance declined over this period of time.

As another example, separate statement fact 18 is: “On March 11, 2020, Rago arrived to work an hour late.” This fact is among a number of facts in which the term “late” is used to describe timing. The evidence cited in support of this fact consists of (1) the testimony of James Bonsell, and (2) notes of Bonsell emailed to Susie Loza. The testimony of Bonsell is only the identification of the notes as “another update to Susie from my OneNote with Al’s performance notes.” (Bonsell decl., pp. 120-121.) The respective notes for that day are: “2020-03-11 Texted that he will be in at 8:30. Came to me about his foggy condition today which he mentioned previously can occur. I asked if it was medication related. He said that the generic drug supplier changes occasionally and it might be related.” (Kamm decl., exhibit 19, p. 75.) This evidence does not support the separate statement fact that Rago was late, only that he would arrive at a particular time.

The “late” description is affirmatively disputed by Rago’s evidence that he was not required to be present at any particular time. According to Susie Loza referring to Rago, “As an exempt employee, they kind of come and go as they need to.” (Loza depo., at p. 80.) According to Tom Cruz, a flexible work schedule enables KSI to recruit and retain employees. (Cruz depo., at p. 65.) Rago’s text as indicated in the performance notes is consistent with Bonsell’s testimony: “Q. … And exempt employees that you supervise, do they need to get your permission to leave earlier or is that something that they can kind of manage on their own? A. I like to be notified if they’re leaving early. So if I’m looking for them to answer a question, I know that they’re not there.” (Bonsell depo., at pp. 35-36.) Under the standards for summary judgment, this evidence is sufficient to dispute the separate statement as to whether Rago was “late.”

“ ‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ ” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).)

The Court also notes that in reply, KSI presents a response to Rago’s opposition separate statement. In that response, KSI itself identifies additional separate statement facts 146, 153, 154, 157, 158, 159, 161, 163, and 164 as disputed, citing evidence to support the existence of the dispute. These additional factual disputes are further examples of the existence of triable issues of fact.

Because there are disputed separate statement facts, including the examples identified above, that are asserted as material as to each of the requested adjudications, the motion will be denied as to each requested adjudication as well as for summary judgment.

(2)        Procedural Matters

The Court notes that both parties have submitted voluminous evidence in support of and in opposition to the motion. KSI has submitted two volumes of evidence attached to the declaration of attorney Nicole Kamm. Volume 1 consists of 214 pages, including its exhibits A and B. Volume 2 consists of 97 pages, including its exhibits C and D. There is a separate document filed entitled, “Defendant Karl Storz Imaging, Inc.’s Compendium of Evidence in Support of Motion for Summary Judgment, or in the Alternative, Summary Adjudication against Plaintiff Alfred Rago.” These documents have proven very difficult for the Court to use.

Despite its title, the “Compendium of Evidence” contains no evidence. It is a two-page document (not including the proof of service) consisting of an index of exhibits to the Kamm declaration, with the index only stating what are labeled as exhibits A through E without reference either to volume or page numbers. And even that document is inaccurate in that it asserts that that the Plaintiff’s complaint is attached as exhibit E when it is not attached as an exhibit. (Fortunately, this last inaccuracy is not a problem to the disposition of the motion because the complaint need not be attached.) Volume 1 of the Kamm declaration attaches exhibits A and B but fails to provide useful bookmarks as required by California Rules of Court, rule 3.1110(f)(4) (“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”). Exhibit A has a working bookmark. There is no bookmark for exhibit B. There are bookmarks listed for exhibits to the Loza deposition (which are appropriate), but none of these bookmarks link to the stated exhibit to that deposition. Volume 2 has working bookmarks for exhibits C and D, but not to exhibits to those two depositions. Moreover, the exhibits are not consecutively paginated as required by rule 3.1110(c). The combined effect of these failures has been to require the Court to work slowly through these pages to find the material that is cited only by its internal page number or deposition exhibit number, none of which can be found easily.

Plaintiff’s evidence is no better. Plaintiff’s evidence is attached to the declaration of attorney Morgan J. Good. The Good declaration is 382 pages long (including the proof of service) and consists essentially as a table of exhibits for the attached exhibits A through AA. The Good declaration is also not consecutively paginated, and the exhibits are neither bookmarked nor otherwise identified. The combined effect of these failures also has been to require the Court to work slowly through these pages to find the material that is cited by its internal page number or deposition exhibit number, none of which can be found easily.

But for the impending trial date, the Court would have required the parties to reformat their papers to comply with the rules to address these and other formatting issues. For the present, the parties are reminded of their obligation to follow the California Rules of Court, including the formatting requirements set forth therein. (See also Cal. Rules of Court, rule 2.30.)

In reply, KSI makes a number of evidentiary objections. Based upon the above discussion, it is unnecessary for the Court to address these objections. (See Code Civ. Proc., § 437c, subd. (q).)

Also in reply, KSI presents two supplemental declarations, that of attorney Kamm (25 pages) including additional exhibits F, G, H, J, K, and L, and that of Loza (17 pages) including additional exhibit I. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case …’ and if permitted, the other party should be given the opportunity to respond. [Citations.]” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The Court has considered the additional evidence and determined that it does not affect the Court’s analysis in finding triable issues of fact precluding summary judgment or summary adjudication.

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