2014-00169278-CU-CR

James Worsnop vs. State of Ca, Dept. of General Services

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Deschler, Jerry J.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendants will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant California Department of General Services’ (“DGS”) motion for summary judgment, or in the alternative, summary adjudication is GRANTED.

DGS’ request for judicial notice is granted. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Trial is scheduled for April 8, 2019.

Overview

This is an employment disability discrimination action. Plaintiff James Worsnop (“Worsnop”) alleges that he was a DGS employee from June 14, 2002, until April 5,

2013. According to Worsnop, in 2003, Terry Bird (“Bird”), a DGS supervisor assaulted him at a work-related function. Worsnop alleges that the assault followed a conversation with another DGS employee during which Worsnop criticized the DGS’ use of outside real estate professionals to negotiate state leases. Worsnop alleges that the use of outsiders unnecessarily costs the state money and creates conflicts of interest.

Bird subsequently became Worsnop’s direct supervisor, during which time Worsnop allegedly began to suffer retaliation. Worsnop reported the assault to the DGS’ personnel office, and an investigation ensued. The officer in charge of the investigation was allegedly the assailant’s mentee. “Nothing happened” as the result of the DGS’ investigation.

After Worsnop requested a copy of the investigation report, DGS allegedly retaliated against him by docking his pay for a year and issuing a negative performance review. By way of a settlement, the reduction in pay was partially reversed. Nonetheless, Worsnop received another negative performance review and was demoted. One and one-half months into his new position, Worsnop received another negative performance review.

Further negative performance reviews followed as well as a suspension. Worsnop began experiencing severe work-related stress, but the DGS denied his requests for reasonable accommodations. Worsnop allegedly filed an internal complaint about disability discrimination and retaliation, but no investigation was undertaken.

In June 2011, DGS terminated Worsnop for asserted tardiness and other deficiencies. Worsnop alleges that DGS thereafter displayed his work identification to the public and designated him a dangerous person. Three months after his termination, Worsnop was treated for stress and a brain tumor. He alleges that his stress caused the tumor.

Through his union, Worsnop appealed his dismissal. As a result of the appeal, the dismissal was withdrawn and the dispute was settled verbally in exchange for Worsnop’s resignation the following year. Worsnop alleges that after his resignation, DGS continued its wrongful conduct. In August 2012, DGS sent Worsnop’s final paycheck for “full pay and benefits” pursuant to the settlement. (SAC, ¶ 60.) Worsnop alleges that his check did not correctly deduct for his withholdings and his vacation, sick leave, and seniority time were inaccurate. He immediately began calling the DGS and Worsnop began calling DGS asking for an explanation and accounting. (Id.) The calls continued from September 2012 to present. (Id.) DGS failed to cooperate and no longer returned Worsnop’s inquiries from the later part of 2012 and throughout 2013. ( Id.) Worsnop alleges that DGS’ acts are “consistent with its continuous pattern and practice to retaliate against him for whistle-blowing and discriminate against his stress induced disability.” (Id.) DGS did not make deposits into his CalPERS retirement account for July 2011, and May through September 2012. In February 2014, EDD served a second notice of overpayment on Worsnop. (Id. ¶ 66.) Worsnop is informed and believes that the DGS notified EDD that Worsnop should be prosecuted for the disability repayments “as another way to continue its pattern and practice of retaliating against him for whistle-blowing and discriminating against his stress induced disability.” (Id.)

In September 2013, Worsnop filed a DFEH complaint for personal claims he contends were not released. He received a right-to-sue letter that same month. Also in September 2013, Worsnop filed a government tort claim with the Victim Compensation

& Government Claims Board (“Board”). In October 2013, the Board determined it lacked jurisdiction to consider the claim. Worsnop commenced this civil action in September 2014.

After several demurrers, the only remaining cause of action is for disability discrimination.

DGS moves for summary judgment/adjudication of six issues, the Court grants summary adjudication as to Issues 2 and 4.

Issue 2: Conduct Prior To May 14, 2012 Barred By the Statute of Limitations

Pursuant to Lillenthal & Fowler v. Sup. Ct. (1993) 12 Cal.App 4th 1848, DGS moves for summary adjudication of the pre-May 14, 2012 conduct on the ground that it is barred by the applicable statute of limitations.

Under FEHA an employee must file a civil action within one year from the date the DFEH issues the right to sue letter. (Gov’t Code § 12965(b).) Here, it is undisputed that on June 15, 2011, Worsnop was served with a Notice of Adverse Action terminating his employment effective June 30, 2011. (UMF 2.) On June 29, 2011, Worsnop filed a complaint with the DFEH for, among others, disability discrimination and failure to accommodate. (UMF 3.) On May 14, 2012, DFEH issued Worsnop a “Notice of Case Closure/Right to Sue” letter. (UMF 16.) The letter explained that Worsnop was required to file a civil action by no later than May 14, 2013. (UMF 16.) Worsnop filed a second DFEH complaint on September 27, 2013, for disability and age discrimination. (UMF 17.) He alleged that he was demoted, denied a good faith interactive process, denied a work environment free of discrimination, denied continuation of employer-paid health care coverage while on pregnancy disability leave, denied employment, denied reasonable accommodation, and was terminated. (UMF 17.) Worsnop filed the instant action on September 23, 2014. (UMF 18.)

Here, Worsnop filed his civil complaint more than one year after the May 14, 2012 right -to-sue letter. Although he filed another DFEH complaint on September 27, 2013, he cannot “piggy back” his stale claims onto a subsequently filed DFEH administrative complaint if the allegedly unlawful conduct occurred more than one year before the DFEH complaint was filed. (See Acuna v San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1417 (plaintiff cannot revive expired discrimination claim by filing new DFEH administrative complaint years after alleged discrimination occurred.)

In opposition, Worsnop counters that the Court’s 8/13/2015 ruling on DGS’ demurrer to the second amended complaint already ruled on the same argument. Worsnop’s argument misses the mark.

In the demurrer to the second amended complaint, DGS argued that pursuant to Gov’t Code § 12965(d), Worsnop failed to exhaust his administrative remedies. Government Code § 12960(d) generally requires an employee pursuing FEHA claims to exhaust administrative remedies by filing a DFEH complaint within one year of the date of the “alleged unlawful practice or refusal to cooperate.” The Court held that Worsnop’s post-termination allegations in his second amended complaint were sufficient to satisfy the exhaustion of administrative remedies requirements. The Court expressed no opinion regarding DGS’ argument herein – that Worsnop failed to file his civil action within one-year of the right to sue letter. (Acuna, supra, 217 Cal.App.4th at 1413 [“Section 12965 concerns a separate statutory deadline applicable after the DFEH issues a right-to-sue notice.”].)

The Court concludes that Worsnop fails to satisfy his burden to demonstrate a triable issue of material fact. Accordingly, DGS’ motion for summary adjudication as to the pre-May 14, 2012 conduct is GRANTED.

Issue 4: Worsnop Cannot Establish That DGS Took an Adverse Employment Action Against Him as to the Post-Termination Disability Discrimination Claim

Again, Worsnop alleges in the second amended complaint the following post-termination conduct for disability discrimination:

· In August 2012, DGS sent Worsnop’s final paycheck for “full pay and benefits” pursuant to the settlement. (SAC, ¶ 60.) His check did not correctly deduct for his withholdings and his vacation, sick leave, and seniority time were inaccurate. He immediately began calling the DGS and Worsnop began calling DGS asking for an explanation and accounting. (Id.) The calls continued from September 2012 to present. (Id.) DGS failed to cooperate and no longer returned Worsnop’s inquiries from the later part of 2012 and throughout 2013. ( Id.)

· DGS did not make deposits into his CalPERS retirement account for July 2011, and May through September 2012. (Id. ¶ 66.)

· In February 2014, EDD served a second notice of overpayment on Worsnop. (Id

. ¶ 66.) Worsnop is informed and believes that the DGS notified EDD that Worsnop should be prosecuted for the disability repayments “as another way to continue its pattern and practice of retaliating against him for whistle-blowing and discriminating against his stress induced disability.” (Id.)

“In sum, given the focus in Yanowitz v. L’Oreal USA Inc., supra, 36 Cal.4th 1028 on guarding against employer conduct that materially affects an employee’s job performance and/or opportunity for advancement, an adverse employment action is one that affects an employee, not a former employee, in the terms, conditions or privileges of his or her employment, not in the terms, conditions or privileges of his or her unemployment.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1162 [finding that the employer’s refusal to allow an employee to rescind his resignation is not an adverse employment action.][emphasis added].)

It is undisputed that all of the above acts took place after Worsnop’s termination/resignation. Thus, there was no change to Worsnop’s “terms, conditions or privileges” of employment.

The motion for summary adjudication is GRANTED.

Having disposed of both the pre-termination and post-termination claims, DGS’ motion for summary judgment is GRANTED.

The Court need not rule on DGS’ objections to evidence since none of the objected to evidence was material to the disposition of the motion.

This minute order is effective immediately. DGS shall prepare a formal order pursuant to CRC Rule 3.1312 and CCP 437c(g).

Item 2 2014-00169278-CU-CR

James Worsnop vs. State of Ca, Dept. of General Services

Nature of Proceeding: Motion for Sanctions Pursuant to CCP 128.5 & 128.7

Filed By: Deschler, Jerry J.

Defendant California Department of General Services’ (“DGS”) motion for sanctions pursuant to CCP §§128.5 and 128.7 is DENIED

DGS’ request for judicial notice is granted.

DGS has requested that the Court disregard Worsnop’s opposition. Apparently, Wornop served an incomplete copy of his opposition, and DGS still has not received a complete version. The Court, in its discretion, declines to disregard the opposition since the Court concludes that DGS has not satisfied its burden to show that sanctions are warranted.

DGS moves for monetary sanctions in the amount of $251,917.12 against Plaintiff James Worsnop (“Worsnop”) and his attorney, Patricia Tsubokawa Reeves (“Reeves”).

Procedural History

Worsnop filed his complaint on 9/23/2014. The complaint initially asserted causes of action for Intentional Infliction of Emotional Distress, Retaliation for Reporting Workplace Violence, Disability Discrimination, and Defamation. DGS demurred to each cause of action on the ground that the Court lacked jurisdiction because Worsnop’s settlement released the causes of action pled in the complaint. The Court sustained the demurrer with leave to amend. The Court also sustained without leave to amend the demurrer to the IIED and Defamation causes of action finding that Worsnop failed to exhaust his administrative remedies. The Court overruled the demurrer to the Retaliation and Disability causes of action on the grounds that Worsnop failed to exhaust his administrative remedies under the DFEH. In so holding, the Court found that Worsnop had sufficiently alleged that an adverse employment action occurred on April 5, 2013, since pursuant to the settlement, he agreed to resign effective April 5, 2013. (1/21/2015 Order.)

Worsnop then filed a first amended complaint, asserting causes of action for Retaliation and Disability Discrimination. DGS demurred again. The Court continued the hearing on demurrer for supplemental briefing. In continuing the matter, the Court explained the following:

In ruling on the Department’s demurrer to the original complaint, the court rejected the Department’s argument, that Worsnop’s FEHA causes of action were time-barred, on grounds the allegations could not be construed to establish that Worsnop filed a DFEH complaint within one year of the Department’s last unlawful act. (See Cal. Gov’t Code § 12960(d).) With respect to the first amended complaint (“FAC”), the court is now inclined to reverse course and conclude that the Department’s argument, that Worsnop’s FEHA causes of action are time-barred, is meritorious. Because the court is thus considering sustaining the Department’s demurrer on grounds its previously rejected, it will afford the parties another opportunity to brief the issue.

(4/7/2015 Order.) Each party filed supplemental briefs. The Court sustained with leave to amend on the ground that Worsnop had not alleged exhaustion of his administrative remedies since Worsnop did not file a timely DFEH claim after he was terminated and his FEHA causes of action were barred. (Gov’t Code §12960(d).) The Court reconsidered its earlier finding that Worsnop’s date of voluntary resignation could constitute an “unlawful practice or refusal to cooperate” for purposes of determining the one-year period to file a DFEH complaint. The Court cautioned Worsnop that “before amending his allegations in an effort to overcome the one-year period to file a DFEH complaint, Wornsop should closely consider whether there is a legal basis upon which to characterize his resignation in 2013 as an unlawful practice of refusal to cooperate on the Department’s part.” (4/28/2015 Order.) The Court also allowed Worsnop an opportunity to amend retaliation cause of action to plead a “non-FEHA” cause of action. (Id.)

Worsnop filed the Second Amended Complaint (“SAC”) which is the operative complaint. The SAC asserts causes of action for Retaliation for Whistleblowing (Gov’t Code §§8547 and 19683) and Disability Discrimination. DGS demurred. The Court sustained without leave to amend the demurrer to the Retaliation cause of action because Worsnop failed to exhaust his administrative remedies by failing to allege that he filed a complaint with the State Personnel Board. With respect to the Disability Discrimination cause of action, DGS demurred on the ground that Worsnop failed to exhaust his administrative remedies since he did not file a timely DFEH claim after he was terminated. (Gov’t Code §12960(d).) The Court overruled the demurrer because Worsnop alleged new facts which occurred after his resignation that fell within one year of his second DFEH complaint filed in September 2013. (8/13/2015 Order.) Thus, the only remaining cause of action is for Disability Discrimination.

The Court has granted DGS’ concurrent motion for summary judgment/adjudication. The Court has found that Worsnop failed to satisfy his burden to demonstrate a triable issue of material fact that: (1) the pre-May 14, 2012 conduct is barred by the statute of limitations set forth in Gov’t Code §12965(b) since Worsnop failed to file his civil action within one year of the DFEH’s right to sue letter, and (2) the post-termination conduct was not an adverse employment action.

Legal Standard

CCP §128.5 Sanctions

Pursuant to California Code of Civil Procedure section 128.5, a court may issue sanctions against a party, the party’s attorney, or both, “as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (CCP § 128.5(a).) “ ‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (CCP §128.5(b)(1).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP §1285.5(b)(2).) Sanctions under CCP §128.5 are warranted only if the moving party meets its burden of proving that the opposing party’s action or tactic was totally and completely without merit, measured by the objective “reasonable attorney” standard, or motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. (See Weisman v. Bower (1987) 193 Cal. App.3d 1231, 1236.)

CCP §128.7 Sanctions

An attorney who files a pleading with the court certifies that the pleading has merit “to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” (CCP § 128.7(b).) The attorney certifies that “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(CCP § 128.7(b)(1)-(4).) The certification is measured under an objective standard. “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 [citations omitted].) Violation of this standard subjects and attorney to sanctions which are sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. (CCP § 128.7(d).) Sanctions are warranted by “signing, filing, submitting, or later advocating” a meritless pleading. (CCP § 128.7(b).)

“Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Peake, supra, 227 Cal.App.4th at 448.) Section 128.7 “must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative though sensible way. Our law is constantly evolving, and effective representation sometimes compels attorneys to take the lead in that evolution.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167-168.)

The party moving for sanctions has the burden to show that sanctions are warranted. (See Peake, supra, 227 Cal.App.4th at 432; Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422.)

Analysis

DGS insists that Worsnop’s claims are frivolous and lack evidentiary and legal support. In its motion, DGS repeats the arguments made in its motion for summary judgment/adjudication on the only remaining cause of action for Disability Discrimination. It also maintains that Worsnop and Reeves were aware that his claims were frivolous. DGS points to the Court’s demurrer rulings which eliminated Worsnop’s causes of action for Retaliation, Intentional Infliction of Emotional Distress and Defamation. DGS also notified Reeves that that the retaliation claims were improper and subject to sanctions. (Declaration of Jerry Deschler (“Deschler Decl.”), ¶ 16, 18, 21, Ex. 6, 10.)

In March 2018, Reeves and DGS met to discuss the case. (Deschler Decl., ¶ 27.) Reeves explained that she believed DGS was liable to Worsnop for discrimination and retaliation that allegedly occurred during his employment. (Id.) DGS explained again that such claims were time-barred and that post-termination conduct cannot constitute an adverse employment action. (Id.) Reeves insisted that the “fair” thing to do was to settle the case by paying Worsnop the $6 million he allegedly saved taxpayers in the performance of his duties. She stated that she believed the parties should not waste time litigating the case, but that the case “must settle.” (Id.) Thereafter, Reeves communicated that Worsnop would settle for $1.8 million. (Id.)

DGS advances that Reeves cannot claim ignorance of legal and evidentiary standards for pursing a case because she was admitted to the bar in 1987, and as an experienced attorney, she is “charge with knowledge that pursuing frivolous claims is sanctionable conduct.” (Motion, 17:27-28.)

DGS lastly submits that Reeves engaged in “other bad-faith conduct calculated to drive up litigation costs” by preventing DGS from obtaining discovery and prematurely forcing the case to trial with DGS obtaining the discovery. (Motion, 18:5-10.) For example, Worsnop repeatedly delayed his deposition for over one year (mid-2016 through September 2017), claiming mental/psychological incapacity and hospitalizations. Yet, Reeves would not agree to stipulate to continue the impending 10/16/2017 trial date. DGS filed a motion to continue trial. Worsnop filed a response to the motion, agreeing that the trial should be continued in order to stabilize his mental health, but disputing DGS’ characterization that Worsnop intentionally delayed discovery. Ultimately, DGS filed a motion to compel Worsnop’s deposition, which the Court granted. (11/8/2017 Order.) Additionally, for over one year, Worsnop declined to execute an authorization form for the EDD to produce records relating to his unemployment and disability benefits, which partially formed the basis of Worsnop’s allegations of disability discrimination based on post-termination conduct. (Deschler Decl., ¶ 17.) DGS claims that it was required to file additional discovery motions, however, the Court’s records do not reflect any such motions.

The Court concludes that DGS fails to satisfy its burden to impose sanctions under either CCP §128.5 or §128.7. As noted above, DGS’ motion repeats the arguments made in its motion for summary judgment/adjudication which concerned only the Disability Discrimination cause of action. DGS’ motion fails to analyze Wornsop’s action as a whole (i.e. his retaliation, defamation, and intentional infliction of emotional distress causes of action). Merely because DGS prevailed in the action does not mean that the entire action was frivolous.

To the extent DGS contends that Worsnop frivolously maintained his Disability Discrimination cause of action after the remaining causes of action were disposed of, the Court is not persuaded that “any reasonable attorney would agree that [it] is totally and completely without merit.’” (Peake, supra, 227 Cal.App.4th at 440.) Here, Worsnop filed two DFEH complaints, and the Court held in its demurrer that Worsnop’s allegations were sufficient to satisfy Gov’t Code §12960(d) – acts failing within one year of the September 2013 DFEH complaint. Thus, the cause of action was allowed to proceed. A reasonable attorney could believe that the September 2013 DFEH complaint satisfied the requirements of Gov’t Code § 12965(b) — filing a civil action within one year from the date the DFEH issues the right to sue letter.

Additionally, DGS has not demonstrated pursuant to CCP §128.5, that Worsnop was motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. Reeves submits her declaration admitting that she was distracted between 2015 and 2017 because she was grieving the death of her adult daughter, and then moved to Southern California to be closer to her only surviving daughter and grandchildren. (Declaration of Patricia Tsubokawa Reeves, ¶ 3.) The Court is also not convinced that Reeve’s insistence on settling the action rather than continuing to litigate shows subjectively an intention to harass or cause unnecessary delay.

DGS relies on Harris v. Rudin (2002) 95 Cal.App.4th 1332, for the proposition that sanctioning an attorney is proper where “a party repeatedly argues a rejected claim.” (Motion, 18:1-3.) Harris is inapposite. In Harris, the court awarded sanctions under CCP §128.5 because the sanctioned party continued to file motions based on arguments that the court had previously rejected. Here, Reeves has not “repeatedly argued a rejected claim.” Indeed, the Court overruled DGS’ demurrer to the Disability Discrimination cause of action. Thus, the Court did not “reject” the claim until the motion for summary judgment.

Nor is the Court persuaded that Worsnop/Reeves engaged in “other bad-faith conduct calculated to drive up litigation costs” by preventing DGS from obtaining discovery and prematurely forcing the case to trial with DGS obtaining the discovery. (Motion, 18:5-10.) Here, although DGS claims that it was required to file additional discovery motions (beyond the motion to compel Worsnop’s deposition), the Court’s records do not reflect any such motions.

Accordingly, DGS’ motion for sanctions pursuant to CCP §§ 128.5 and 128.7 is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.