Case Name: Jawahar Jain v. Samsung Research America, Inc., et al.

Case No.: 17-CV-318162

Factual and Procedural Background

This action arises from an employment dispute between Jain and his former employer, defendant Samsung Research America, Inc. (“Samsung”). Before the Court is the motion by plaintiff Jawahar Jain (“Jain”) for summary adjudication.

According to allegations of the operative fourth amended complaint (“FAC”), Jain, a 53-year old technology researcher, began working for Samsung in June 2014, as a principal engineer and biosensing lead. (FAC, ¶¶ 1 & 12.) During his employment, Jain was part of the Think Tank Team (“TTT”) and under the supervision of defendants Pranav Mistry (“Mistry”) and Sajid Sadi (“Sadi”). (Id. at ¶¶ 3-4 & 12.) His job duties included researching and inventing new technologies. (Id. at ¶¶ 1 & 12.) Jain was allegedly a valued employee who performed his duties well and developed a number of inventions. (Id. at ¶¶ 12-13.)

While employed with Samsung, Jain suffered from disabilities, including “stress triggered OCD (obsessive compulsive disorder) and benign fasciculation syndrome which causes visible frequent, extreme, embarrassing facial muscle and nose twitching and squinting of eyes.” (FAC, ¶¶ 14-15.) Jain’s disabilities were known to Samsung, Mistry, and Sadi (collectively” Defendants”) and Jain noticed that his coworkers, Mistry, and Sadi would avoid working with him or looking him in the eye when he had facial contortions. (Id. at ¶¶ 14 & 16.) Mistry would often comment on his appearance, saying Jain should try to “appear like others.” (Id. at ¶ 17.) In 2017, Jain was told by Mistry to consult Sadi and another colleague, Jeff Pierce,” to get help in ‘integrating’ [himself] and to ‘figure out’ how to get resources.” (Ibid.)

Jain allegedly “requested accommodations for his high myopia, eye pain, and weak eyesight numerous times including seating locations where types of ambient light would not stress his eyes.” (FAC, ¶ 18.) Specifically, Jain sent emails and messages to Defendants about his eye strain and asked “to work from a place like ‘Dojo’ (where one can easily see outside view) to reduce his eye strain.” (Id. at ¶¶ 18 & 23.) However, no change was made to his seating location even though there were several suitable seating locations in the main work area and Defendants could have accommodated him without any hardship. (Id. at ¶¶ 18 & 21.) When Samsung moved offices, Jain asked his supervisors for a seat near a suitable window to prevent eye strain, but that request was rejected. (Id. at ¶¶ 18, 23, & 61.) Jain requested other accommodations to lessen his eye strain, such as “easily available tablets and monitors to make document reading easier.” (Id. at ¶¶ 19 & 20.) In mid-October 2016, Sadi informed Jain that Mistry “declined the requested accommodation.” (Id. at ¶¶ 19 & 22.) Defendants did not engage in the interactive process with him and “deliberately withheld any accommodation to increase the pain [he] was going through.” (Id. at ¶¶ 18 & 20-21.)

“Jain also suffered from depression and brought it to [Sadi’s] attention ….” (FAC, ¶¶ 24 & 96.)

Throughout his employment, Jain experienced discrimination and harassment on account of his disabilities and age. (FAC, ¶ 24.) For example, Mistry told Jain “the younger people don’t want to work with you,” “go and learn from the younger people how to work on joint projects,” “we need to rehabilitate how the young people look at you,” and he needed to work on his appearance to get you people to work with him. (Id. at ¶¶ 24-26.) Mistry also disparaged Jain, by making comments such as, “People do not like working with you,” “People close their ears when you speak,” and “I do not think you have ever delivered anything in your life.” (Id. at ¶ 32.) Mistry further threatened Jain, saying, “Do you want me to just close your project? I can do that!” (Ibid.) When Mistry also repeatedly insulted and shouted at Jain. (Id. at ¶¶ 33-34.) The stress of these situations triggered Jain’s benign fasciculation syndrome, causing severe and uncontrollable facial movements. (Id. at ¶¶ 34-35.) These facial movements in turn prompted even more shouting. (Id. at ¶ 35.) “Mistry’s harassment of … Jain was due to [his] disabilities, requests for accommodations, and age as … Mistry did not treat any of the other employees the same way although … Mistry did sometimes yell at Dr. Post, the other oldest person in TTT.” (Id. at ¶ 36.)

Jain was also denied the staff and resources necessary to do his work while other younger, non-disabled persons were given the necessary staff and resources. (FAC, ¶ 27.) For example, he needed high-end smartphones with specific sensors to do his work, but Mistry denied his request for the research equipment and Jain had to purchase these devices himself. (Id. at ¶¶ 19 & 119-120.)

In addition, Defendants punished Jain for complaining about misconduct. Jain and other Samsung employees were incentivized to author patents in various ways including monetary bonuses. (FAC, ¶ 40.) These bonuses were split among the people named on the patent. (Ibid.) Jain authored many patents while working at Samsung. (Id. at ¶ 41.) Mistry and Sadi placed their names on many patents despite not contributing to them, and removed the names of people who had contributed. (Id. at ¶¶ 41, 51, & 54.) This was a deliberate attempt by Mistry and Sadi to obtain monetary bonuses that should have gone to employees that worked on those patents. (Id. at ¶¶ 45 & 55.) Moreover, falsely identifying the inventors on a patent is illegal, and potentially invalidates the patent. (Id. at ¶¶ 42-43.) Jain complained about this practice to Mistry, Sadi, and others, but his complaints were ignored. (Id. at ¶¶ 44-45, 49-50, & 52-53.)

In early September 2017, Defendants accused Jain of harassing a colleague. (FAC, ¶¶ 62-63.) Jain briefly spoke with senior human resources director Brett Flynn (“Flynn”) and human resources representative Irene Oh (“Oh”) about the allegations via phone and denied harassing his colleague. (Id. at ¶ 63.) Samsung did not properly investigate the allegations, and Sadi suppressed or distorted evidence favorable to Jain. (Id. at ¶¶ 64 66-67-71.) Sadi did so, in part, because Jain made complaints about the false authorship of patents. (Id. at ¶ 66.) Jain eventually received a warning from Samsung. (Id. at ¶¶ 64-65.)

That same day, Jain refused to put Mistry’s name on any more patents. (FAC, ¶ 73.) A few days later, Jain was again accused of harassing a colleague. (Id. at ¶ 74.) This time the accusation was that he placed a container of orange juice—that later exploded—on someone’s desk. (Ibid.) Samsung did not conduct any investigation before accusing Jain. (Id. at ¶¶ 72, 75, & 88.) Flynn informed Jain he was being terminated as a result of the orange juice incident. (Id. at ¶¶ 74 & 89.) Flynn later admitted security video footage showed Jain did not place the juice on the desk. (Id. at ¶ 77.) This incident was a pretext to terminate Jain. (Id. at ¶¶ 77, 95, & 115.) “[T]he real reasons for his termination and other actions against him were a mix of age and disability discrimination, request for accommodations, request for medical leave, pointing out the violation of his civil rights by HR, and retaliation for acting against the long-standing patent violations.” (Id. at ¶ 115.) Samsung agreed to revisit the issue of termination in a few days. (Id. at ¶ 90.)

Another department within Samsung called Digital Health Laboratories (“DHL”) requested Jain’s services soon after his verbal termination. (FAC, ¶¶ 89 & 91-93.) Sadi agreed to transfer Jain to DHL pending the meeting to revisit the issue of termination. (Id. at ¶ 91.)

Meanwhile, the termination had adverse effects on Jain’s physical, emotional, and mental health. (FAC, ¶ 95.) He requested a medical leave of absence due to his severe depression and suicidal ideations. (Id. at ¶ 98 & 145.)

Jain suspected his termination was really based on the fact he had complained about the practice of adding and removing names from patent documents. (FAC, ¶ 99.) He asked for a confidential meeting with Oh “to discuss the situation with him and requested confidentiality and protection due to his whistleblowing.” (Id. at ¶¶ 99-100.) Later that same day, he was informed that the promised meeting revisiting his termination had occurred, and he was being terminated. (Id. at ¶¶ 102 & 103.) The next day, Jain met with Oh for an exit interview. (Id. at ¶ 107.) During the interview, he “provided many details regarding his termination due to disabilities and request for leave.” (Ibid., emphasis in original.)

On September, 24, 2019, Jain informed Samsung that he was applying for state disability. (FAC, ¶ 113.) A few days later, Samsung told Jain he was obligated to work on several patent documents even though he had “been formally relieved of all duties and responsibilities.” (Id. at ¶¶ 113-114.)

Defendants’ actions caused serious medical harm to Jain. (FAC, ¶¶ 113-114, 116.) He suffered—among other things—temporary blindness, weight loss, disabling OCD, cardiac problems, neurological problems, and severe suicidal depression. (Ibid.)

Based on these allegations, Jain alleges causes of action against Defendants for: (1) failure to reimburse expenses; (2) unlawful retaliation in violation of public policy; (3) wrongful termination in violation of public policy; (4) disability discrimination; (5) age discrimination; (6) harassment; (7) failure to prevent and investigate discrimination and harassment; (8) failure to provide reasonable accommodation; (9) failure to engage in interactive process; (10) violation of the California Family Rights Act (“CFRA”) and the Family Medical Leave Act (“FMLA”); (11) intentional infliction of emotional distress; (12) breach of contract; (13) breach of the implied covenant of good faith and fair dealing; (14) unfair business practices; and (15) unjust enrichment.

Defendants filed an answer to the FAC, generally denying the allegations of the FAC and alleging various affirmative defenses. As is relevant here, Defendants’ eighth, fourteenth, sixteenth, seventeenth, and eighteenth affirmative defenses are after-acquired evidence, “prompt remedial action,” “not eligible for leave,” “interactive process not initiated by [Jain],” and “Defendants’ good faith engagement in interactive process,” respectively.

On December 2, 2019, Jain filed the instant motion for summary adjudication. Defendants filed papers in opposition to the motion on February 20, 2020. On February 28, 2020, Jain filed a reply.

The case is currently set for jury trial on May 26, 2020.

Discussion

Pursuant to Code of Civil Procedure section 437c, subdivision (f)(1), Jain moves for summary adjudication of the following twelve issues:

(1) Samsung owed him a duty to respond to his request for medical leave in September 2017;

(2) Samsung owed him a duty to grant his request for medical leave in September 2017;

(3) There is no merit to Samsung’s sixteenth affirmative defense;

(4) Samsung owed him a duty to engage in a good faith interactive process in and after September 2017;

(5) There is no affirmative defense to his ninth cause of action;

(6) There is no merit to Samsung’s seventeenth affirmative defense;

(7) There is no merit to Samsung’s eighteenth affirmative defense;

(8) Samsung owed him a duty to take all steps to prevent and investigate discrimination in and after September 2017;

(9) There is no affirmative defense to his seventh cause of action;

(10) There is no merit to Samsung’s eighth affirmative defense;

(11) There is no merit to Samsung’s fourteenth affirmative defense; and

(12) Samsung owed him a duty to terminate him solely for good cause after an adequate investigation.

(Ntc. Mtn., pp. ii:4-iii:6; Jain’s Separate Statement of Undisputed Material Facts (“SSUF”), pp. 1:19-16:4.)

I. Legal Standard

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a); All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 [“Summary judgment is proper only if it disposes of the entire lawsuit.”].) Where a plaintiff moves for summary judgment, the plaintiff bears the initial burden of showing that there is no defense to a cause of action by proving each element of the cause of action entitling the plaintiff to judgment. (Code Civ. Proc., § 437, subd. (p)(1); Paramount Petroleum Corporation v. Super. Ct. (2014) 227 Cal.App.4th 226, 241 (Paramount); S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388 (S.B.C.C.).) If the plaintiff makes such a showing, the burden then shifts to the defendant to show that a triable issue of one or more material facts exists as to a cause of action or a defense thereto. (Code Civ. Proc., § 437, subd. (p)(1); Paramount, supra, 227 Cal.App.4th at p. 241.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] § 437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

II. Issue Nos. 5 and 9

In Issue No. 5, Jain seeks summary adjudication of his ninth cause of action for failure to engage in the interactive process on the basis that there is no affirmative defense to the claim. (Ntc. Mtn., p. ii:14-16; Mem. Ps. & As., p. 12:19-21; Jain’s SSUF, p. 8:22-23.) In Issue No. 9, Jain seeks summary adjudication of his seventh cause of action for failure to prevent and investigate discrimination and harassment on the basis that there is no affirmative defense to the claim. (Ntc. Mtn., p. ii:26-28; Mem. Ps. & As., p. 16:22-24; Jain’s SSUF, p. 11:3-5.)

Jain’s motion is defective as to Issue Nos. 5 and 9. “[A] plaintiff may … move for summary adjudication of a cause of action, if the plaintiff asserts there is ‘no defense’ to that cause of action.” (Paramount, supra, 227 Cal.App.4th at p. 241.) A plaintiff moving for summary adjudication of a cause of action must prove each element of the cause of action. (Ibid.; S.B.C.C., supra, 186 Cal.App.4th at p. 388.) “[E]stablishing that there is no affirmative defense to a cause of action does not establish the merits of that cause of action.” (Paramount, supra, 227 Cal.App.4th at p. 240 & fn. 18.) “The lack of affirmative defenses says nothing about the merits of the cause of action, on which the plaintiff bears the burden of proof.” (Id. at p. 240, fn. 19.) Because Issue Nos. 5 and 9 seek summary adjudication of the ninth and seventh causes of action, respectively, on the ground that there is no affirmative defense to the claims, Issue Nos. 5 and 9 do not completely dispose of any cause of action. Thus, Jain is not entitled to summary adjudication of Issues Nos. 5 and 9 as framed in his notice of motion. (See McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975 [“there can be no summary adjudication of less than an entire cause of action. … If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered”]; see also Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744 [“A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified.”]; Gonzalez v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1545 [“It is elemental that a notice of motion must state in writing the ‘grounds upon which it will be made.’ [Citations.] Only the grounds specified in the notice of motion may be considered by the trial court. [Citations.]”].)

Accordingly, Jain’s motion for summary adjudication of Issue Nos. 5 and 9 is DENIED.

III. Issue Nos. 1, 2, 4, 8, and 12

In Issue Nos. 1, 2, 4, 8, and 12, Jain purports to seek summary adjudication of issues of duty, such as that Samsung owed him a duty to respond to his request for medical leave in September 2017. Although Jain attempts to frame his motion as being directed to a proper subject of summary adjudication, he does not actually seek summary adjudication of an issue of duty within the meaning of the Code of Civil Procedure.

Jain does not identify any legal authority for the proposition that the purported duties identified in his notice of motion are “issues of duty” within the meaning of Code of Civil Procedure section 437c, subdivision (f)(1). Case law supports the proposition that a court may summarily adjudicate the issue of whether a legal duty was owed for the purpose of a negligence claim. (See Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 517-519 (Linden); see also Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 Cal.App.4th 668, 672; Public Utilities Com. v. Super. Ct. (2010) 181 Cal.App.4th 364, 380.) Case law also supports the proposition that a court may summarily adjudicate the issue of the existence or nonexistence of a duty in the nature of a contractual obligation. (See Linden, supra, 62 Cal.App.4th at p. 519 [the court approved of summary adjudication of the issue of whether a land-sale agreement required the defendants to deliver to the plaintiffs an estoppel certificate containing certain information]; see also Transamerica Ins. Co. v. Super. Ct. (1994) 29 Cal.App.4th 1705, 1713-1714 [the court summarily adjudicated whether an insurer’s had duty to defend due the terms of an insurance policy].)

Here, Issue Nos. 1, 2, 4, 8, and 12 do not seek to summarily adjudicate the issue of whether a legal duty is owed for the purpose of a negligence claim. Similarly, Issue Nos. 1, 2, 4, 8, and 12 do not seek to summarily adjudicate the issue of the existence or nonexistence of a duty in the nature of a contractual obligation. Jain does not cite, and the Court is not aware of, any analogous case in which a court declared whether the defendant was required to take certain actions under various labor laws. Despite Jain’s resourceful notice drafting, the Court is not persuaded the summary adjudication procedure can be employed to resolve the issues raised by Issue Nos. 1, 2, 4, 8, and 12.

Furthermore, despite the language in Jain’s notice of motion, it is apparent that Jain does not just seek a determination as to whether duties exists under various labor laws. Instead, Jain seeks a determination that the Samsung was required to undertake certain actions based on the events that have transpired. For example, there does not appear to be any dispute that Samsung was generally required to comply with the labor law statutes with respect to Jain’s employment. Rather, the parties dispute the proper interpretation of the applicable statutes and whether Samsung violated them under the particular facts of this case. Thus, although cast as a request for a ruling on the existence of a duty, Jain really seeks summary adjudication of Samsung’s liability under the statutes at issue.

Accordingly, Jain’s motion for summary adjudication of Issue Nos. 1, 2, 4, 8, and 12 is DENIED.

IV. Issue Nos. 3, 6, 7, and 11

In Issue Nos. 3, 6, 7, and 11, Jain seeks summary adjudication of Samsung’s fourteenth, sixteenth, seventeenth, and eighteenth affirmative defenses on the ground there is no merit to those affirmative defenses.

In its fourteenth affirmative defense for “prompt remedial action,” Samsung alleges that “each cause of action is barred in whole or in part because Defendants exercised reasonable care and prompt and appropriate remedial action was taken by Defendants on all behaviors reported or complained of by Plaintiff.” (Answer, p. 4:15-18.) Next, in its sixteenth affirmative defense of “not eligible for leave,” Samsung alleges that Jain’s “claims involving the alleged exercise of rights under the California Family Rights Act and/or the Family and Medical Leave Act, are barred, in whole or in part, because Plaintiff was not an eligible employee as defined by the California Family Rights Act and/or the Family and Medical Leave Act.” (Id. at p. 5:3-7.) In its seventeenth affirmative defense of “interactive process not initiated by [Jain],” Samsung alleges that Jain “failed to notify Defendants of any disability and failed to initiate an interactive process to identify a reasonable accommodation that would not cause an undue hardship on the operation of Defendants’ business.” (Id. at p. 5:10-14.) Lastly, in its eighteenth affirmative defense of “Defendants’ good faith engagement in interactive process,” Samsung alleges “Defendants engaged in a good faith interactive process to identify and make a reasonable accommodation of [Jain’s] alleged disability that would not cause an undue hardship on the operation of Defendants’ business.” (Id. at p. 5:17-21.)

Here, summary adjudication of Issue Nos. 3, 6, 7, and 11 is not appropriate because Samsung’s fourteenth, sixteenth, seventeenth, and eighteenth affirmative defenses are not, in actuality, affirmative defenses at all. “The answer to a complaint shall contain … any new matter constituting a defense.” (Code Civ. Proc. §431.30, subd. (b)(2).) An affirmative defense is new matter that a defendant is required to plead and prove. (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 424.) “The mere fact that an answer contains an affirmative allegation does not mean per se that it is setting up ‘new matter.’ An averment in the answer contrary to what is alleged in the complaint is equivalent to a denial. [Citation.] The basic consideration is whether the matters of defense are responsive to the essential allegations of the complaint, i.e., whether they are contradicting elements of plaintiff’s cause of action or whether they tender a new issue, in which case the burden of proof is upon the defendant as to the allegation constituting such new matter. [Citation.]” (Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 385.)

The Court is of the opinion that Samsung’s fourteenth, sixteenth, seventeenth, and eighteenth affirmative defenses do not constitute new matter and are, instead, denials of material allegations of the FAC. The fourteenth affirmative defense is a denial of Jain’s allegation that Samsung failed to take adequate action to prevent and investigate discrimination and harassment. The sixteenth affirmative defense is a denial of Jain’s allegation that he was an eligible employee entitled to certain rights and medical leave under the CFRA and/or the FMLA. The seventeenth affirmative defense is a denial of Jain’s allegation that he notified Defendants of his alleged disability and identified reasonable accommodations. The eighteenth affirmative defense is a denial of Jain’s allegation that Samsung failed to engage in a good faith interactive process and provide reasonable accommodations for his alleged disability. Through this motion for summary adjudication, Samsung cannot be made to prove Jain’s seventh through tenth causes of action nor can Samsung be prevented from trying to disprove those claims at trial.

Accordingly, Jain’s motion for summary adjudication of Issue Nos. 3, 6, 7, and 11 is DENIED.

V. Issue No. 10

In Issue No. 10, Jain seeks summary adjudication of Samsung’s eighth affirmative defense of after-acquired evidence on the ground there is no merit to that affirmative defense.

In its eighth affirmative defense, Samsung alleges that “to the extent during the course of this litigation Defendants acquire any evidence of wrongdoing by [Jain], which wrongdoing would have materially affected the terms and conditions of [Jain’s] employment or would have resulted in [Jain] either being demoted, disciplined, or terminated, such after-acquired evidence shall bar [Jain] on liability or damages or shall reduce such claims as provided by law.” (Answer, p. 3:3-8.)

An affirmative defense based on the doctrine of after-acquired evidence serves as a defense to an employee’s claim of wrongful discharge when the employer learns of employee wrongdoing that would have resulted in the employee’s discharge in any event. (See Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 428; see also Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 12; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842.)

Jain asserts that he is entitled to summary adjudication of this affirmative defense because Samsung “has not discussed the factual basis for this defense” or “identified any witness to testify about … the after-acquired evidence defense.” (Mem. Ps. & As., p. 17:26-28.) Jains states Samsung “could not possibly have any such negative evidence against [him] because none exists.” (Id. at p. 18:1-2.) Jain also asserts that “Samsung has admitted it did not acquire any evidence after [his] termination that would justify terminating him.” (Id. at p. 18:2-3.) Jain concludes that Samsung “failed to create a triable issue of fact as this defense cannot point to any evidence discovered after [his termination that would have provided a legitimate basis for his termination.” (Id. at p. 18:13-15.)

As is relevant here, Jain cites employment form interrogatory (“FI”) No. 210.2, page 98 of the deposition transcript of Samsung’s person most knowledgeable, and paragraph 20 of his declaration as the evidence which supports his argument. (Jain’s SSUF, Fact Nos. 73-78.)

The evidence cited by Jain does not demonstrate that Samsung does not possess, and cannot reasonably obtain, needed evidence to support its eighth affirmative defense of after-acquired evidence. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 (Aguilar) [when moving for summary adjudication on the ground of lack of admissible evidence, the moving party must present evidence which shows the opposing party does not possess, and cannot reasonably obtain, needed evidence to support the claim or affirmative defense at issue].)

First, Jain did not provide the Court with FI No. 210.2 or Samsung’s response to that interrogatory. Thus, the Court cannot determine whether FI No. 210.2 and Samsung’s response thereto support Jain’s argument.

Second, Samsung’s person most knowledgeable, Charlotte Falla, testified at page 98 of her deposition transcript that: there was video surveillance of some common areas, the front doors, and the parking garage at Samsung; video surveillance is automatically deleted after 30 days; and by the time Samsung received the complaint, “the video was gone.” (Noel Dec., Ex. 2 (Falla’s Deposition Transcript), p. 98:1-28.) Jain does not explain why this testimony is relevant to Samsung’s eighth affirmative defense of after-acquired evidence. Jain does not argue or otherwise establish that Samsung does not possess, and cannot reasonably obtain, needed evidence to support its affirmative defense simply because Samsung does not have this particular video.

Third, in paragraph 20 of his declaration, Jain states,

Defendant has asserted the after-acquired evidence doctrine as an affirmative defense, yet has failed to create a triable issue of fact as this defense cannot point to any evidence discovered after my termination that would have provided a legitimate basis for my termination. Furthermore, Defendant has neither discussed the factual basis for this defense nor identified any witness to testify about any of its affirmative defenses. As such, Defendant’s affirmative defense is unavailing. Indeed, Defendant could not possibly have any such negative evidence against me because none exists. Defendant’s discovery responses and the PMK deposition transcript show that Samsung did not find, after my termination, any evidence to justify terminating me. Form Interrogatory Employment: 210.2; PMK Deposition Page 98:1-28. Finally, there are no facts presented that, for example, others had been fired for similar transgressions, or that others – much less all – who violate a term of the company’s policies have been terminated.

(Noel Dec., Ex. 1 (Plaintiff’s Declaration), ¶ 20.)

Paragraph 20 of Jain’s declaration consists almost entirely of improper legal argument and his conclusory assertions are insufficient to show that Samsung does not possess, and cannot reasonably obtain, needed evidence to support its affirmative defense. (See In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3 (Heggie) [“The proper place for argument is in points and authorities, not declarations.”]; see also Hope Internat. University v. Super. Ct. (2004) 119 Cal.App.4th 719, 739, fn. 9 [“conclusions of fact are not binding on a summary judgment motion”], citing Hayman v. Block (1986) 176 Cal.App.3d 629, 639 [“affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate facts’ ”]; Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196 [“an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ ”].)

In sum, Jain does not present any affirmative evidence—such as discovery responses—which shows that Samsung does not possess, and cannot reasonably obtain, needed evidence to support its eighth affirmative defense. (See Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808 [when a motion for summary adjudication is premised on the lack of admissible evidence, the moving party must support the motion with evidence that the opposing does not possess, and cannot reasonably obtain, the necessary evidence to establish the claim or affirmative defense; it is not enough simply to assert that the opposing party has no evidence supporting an element of the cause of action or affirmative defense as the moving party “must indeed present ‘evidence,’ ” such as “ ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken’ ”].)

Accordingly, Jain’s motion for summary adjudication of Issue No. 10 is DENIED.