Donna McLean v Stuart Fishman

Case Name: McLean v Fishman
Case No: 111CV211316

Plaintiff and Cross-Defendant, Donna McLean (“McLean”), has filed this Motion to Sever the Cross-Complaint from the Complaint for the upcoming trial on May 11, 2015. Defendant and Cross-complainant, Stuart Fishman (Fishman), opposes the Motion.

I. Brief Factual and Procedural Background

McLean worked in Fishman’s Law Office for about 2 ½ years. Fishman fired her in 2011. McLean then filed a complaint against Fishman alleging several causes of action including wrongful termination, failure to pay overtime wages, failure to provide meal breaks, waiting time penalties and unlawful retaliation (for giving an unfavorable work reference to a prospective employer).
After learning certain information from McLean’s deposition, Fishman filed a cross-complaint against her for conversion, trespass to chattels, invasion of privacy and misappropriation of trade secrets, among other claims. Fishman contends McLean accessed and/or altered his law office’s physical property, intellectual property, trade secrets, client property and confidential information. According to Fishman, McLean took more than $1,000 from him without his permission by fraudulently signing two checks on his behalf without his authorization and she fraudulently represented she was entitled to accrued vacation that did not exist. Fishman also claims after he fired McLean, she impermissibly accessed his computer remotely and altered his client files, confidential files and trade secrets. (See, Opposition p. 2)

Mclean brought a Special Motion to Strike under CCP 425.16 which, after appeal, successfully struck causes of action for tortuous interference with contract/relationship and Labor Code violations.
Now, Mclean wants to sever the cross-complaint from the complaint in advance of the upcoming trial because she contends the claims asserted in each are unrelated and a joint trial will prejudice McLean and will be inefficient.

II. Legal Analysis

CCP Section 1048 (b) provides, in relevant part, “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause(s) of action…”

The claims asserted in both the complaint and cross-complaint arise out of McLean’s employment relationship with Fishman and extend to their respective post employment conduct. The Court finds the claims are sufficiently related to promote judicial efficiency and economy by having them adjudicated in one trial. It would be a waste of scarce judicial and taxpayer resources to conduct separate trials when many of same witnesses and some of the same evidence will be needed to address plaintiff’s employment history with defendant, the circumstances surrounding the cessation of her employment and both parties’ post employment conduct.

As to her prejudice argument, McLean asserts Fishman’s cross-complaint untruthfully accuses her of theft on matters unrelated to her wage loss claim and that if the jury incorrectly believed McLean committed theft, that may taint the jury against her regarding the claims asserted in her complaint and deny her a fair trial.
The Court does not find this argument persuasive. The jury will need to determine the credibility of both Fishman and McLean as to all claims asserted and will be instructed that they may believe all, part, or none of a witness’ testimony. (CACI 107) This Court trusts that any jury hearing these claims will follow the law and weigh the evidence appropriately.

McLean’s Motion to Sever is DENIED

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