Case Number: KC065654 Hearing Date: May 19, 2014 Dept: J

Re: Jack Ruiz v. Target Corporation, et al. (KC065654)

MOTION TO VACATE GRANTING OF SUMMARY JUDGMENT

Moving Party: Plaintiff Jack Ruiz

Respondents: Defendants Target Corporation, Sedgwick CMS and Nancy Kraut

POS: Moving OK; Opposing OK

In this action for employment discrimination, Plaintiff alleges that he was discriminated against on the basis of his disability. Plaintiff commenced the action on 2/15/13. The operative Second Amended Complaint, filed on 8/2/13, asserts causes of action for:

1. Fraud by False Promise
2. Violation of Gov C § 12940(a)
3. Violation of Gov C § 12940(j)
4. Violation of Gov C § 12940(i)

On February 27, 2014 the court granted summary judgment in favor of all defendants. Judgment thereon was entered on March 20, 2014.

Plaintiff Jack Ruiz now moves to vacate the granting of summary judgment pursuant to CCP § 663 on the grounds that “the granting of that summary judgment motion, particularly by the Court’s announced adoption of the Court’s written tentative ruling on that motion, as was indicated by the Court at the February 27, 2014 hearing on that motion, constitutes reversible error as an incorrect or erroneous legal basis for the subject decision on that motion which was not consistent with or not supported by the facts.”

PROCEDURAL ISSUES:

A party seeking to vacate a judgment must file with the clerk and serve upon the adverse party “a notice of his or her intention” to file that motion. CCP § 663a(a). Here, Plaintiff has only filed the present motion and a “motion” for judicial notice, and has not filed a Notice of Intention as required by § 663a(a). Further, the present motion lacks a notice of motion, as required under CCP § 1010 and CRC 3.1112(a)(1). Moreover, no declaration or exhibits are filed in support of the factual assertions made in the motion. Thus, the procedural requirements for both a motion under CCP § 663a(a), and motions in general, have not been met.

SUBSTANTIVE ISSUES:

Under CCP § 663, in order for the court to vacate a judgment, there must be either an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts,” or a “judgment or decree not consistent with or not supported by the special verdict.” In addition, “[a] motion to vacate under section 663 may only be brought when the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist.” (Payne v. Rader, 167 Cal.App.4th 1569, 1574 (2008).)

Plaintiff contends that the court committed error because: (1) a job offer communication involved contradictory evidence and gave rise to a triable issue; (2) the court’s evidentiary rulings excluded Ruiz’ Exhibits 2 and 3, but allowed Defendants to introduce that same evidence; and (3) the court made a finding that Workers’ Compensation Exclusivity preempts the Fair Employment and Housing Act (Government Code Section 12940) including Section 12940(i).

Plaintiff argues that the court concluded that the “job offer” communication made to Ruiz was issued by Defendants in error, and determined that there was no evidence which raised a triable issue of material fact as to Defendants’ intentions toward Ruiz. Plaintiff asserts that this is error because Defendants’ own evidence is contradictory regarding the offer. However, the court found that “Defendants have met their burden of demonstrating that Kraut did not know that the representation was false when made” and/or that Defendants “did not intend to defraud Plaintiff.” In his opposition to the summary judgment motion, Plaintiff failed to present any evidence that Ms. Kraut, Sedgwick, or Target acted with any knowledge of the falsity of the September 13, 2011 notice and/or any intent to induce Plaintiff’s reliance on the representations made in that form letter. Thus, Plaintiff has failed to show an incorrect or erroneous legal basis for the decision, or one that is not consistent with, or not supported by, the facts presented.

Plaintiff contends that the evidentiary rulings of the court on Defendant’s objections as to Ruiz’s evidence (Deposition of Ruiz, pages 235, 237-240, 247, and 249-250) must also be vacated and replaced by a ruling that the items of Ruiz’ evidence are admitted into the record. Plaintiff argues that this evidence was also introduced by defense counsel, so it cannot be objected to, citing People v. Moran (1970) 1 Cal.3d 755, 762; which holds that a party who is responsible for the introduction of evidence cannot later object to it as that party has waived any objections to that introduced evidence. But Moran was a criminal case in which the California Supreme Court prohibited a wintness who testified at trial from claiming on appeal that such testimony was made in error. Here, Plaintiff does not state the full text of the evidentiary matter, nor the objections, so it cannot be determined what the grounds for the objections were, and why they were purportedly erroneous. Further, Plaintiff failed to file any timely objection to any of the declarations submitted by Defendants, so the court declined to revisit its evidentiary rulings then, as it does again now.

Plaintiff also contends that the court committed error by finding that Workers’ Compensation Exclusivity preempts the Fair Employment and Housing Act (Government Code Section 12940) including Section 12940(i). However, the court merely found that Plaintiff’s cause of action for fraud was preempted by the Workers’ Compensation Act. The Court did not hold that Worker’s Compensation Exclusivity preempts the Fair Employment and Housing Act, but that where, as here, the “alleged misrepresentations relate to the processing of worker’s compensation claims,” those claims are preempted by the Workers’ Compensation Act because the processing of such claims is “a matter within the WCAB’s exclusive jurisdiction.”

Thus, Plaintiff has failed to show an incorrect or erroneous legal basis for the decision, or one not consistent with or not supported by the facts. For all of the foregoing reasons, the motion to vacate the judgment is denied.

DEFENDANTS’ REQUEST FOR SANCTIONS PURSUANT TO CCP § 128.7:

CCP § 128.7 provides in pertinent part that:

“A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected…”

Here, Defendants have requested sanctions pursuant to this section, but that request is not made separately from their opposition to Plaintiff’s motion. Further, there is no showing that the requisite 21-day safe harbor provision has been satisfied. Therefore, the request for sanctions is denied.