Case Number: KC062474    Hearing Date: August 22, 2014    Dept: J

Re: Wayne Kendrix v. State of California Department of Developmental Services, et al. (KC062474)

MOTION FOR NEW TRIAL AND REQUEST FOR ISSUANCE OF AN ORDER IMPOSING ATTORNEY FEES AND COSTS

Moving Party: Plaintiff Wayne Kendrix

Respondents: Defendants State of California Department of Developmental Sciences and Ibrahim Aly

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c); Reply OK

In this action the plaintiff alleged that defendants committed discrimination based on religion, his medical condition and/or disability, and race. The Complaint, filed November 2, 2011, was amended as of right. The operative First Amended Complaint asserts causes of action for:

1. Violation of Gov. Code 12940(a) [v. Department]
2. Violation of Gov. Code 12940(j) [ v. Bright and Aly]
3. Violation of Gov. Code 12940(k) [ v. Department]
4. Violation of Gov. Code 12940(m) [v. Department]
5. Violation of Gov. Code 12940(n) [v. Department]

The action came on regularly for trial on May 20, 2014. The jury deliberated and returned a special verdict in favor of Defendants. Judgment was entered against Plaintiff and in favor of Defendants on June 23, 2014.

Plaintiff Wayne Kendrix (“Plaintiff”) moves to set aside the judgment on June 26, 2014, and for the granting of a new trial pursuant to CCP § 661 on the grounds that the court wrongfully prevented Plaintiff from introducing evidence at trial which demonstrated Defendant’s violation of the doctrine of judicial estoppel, as well as evidence which demonstrated the impeachment of Defendant’s credibility. Plaintiff requests that the court order Defendants and/or their counsel to reimburse Plaintiff the cost of filing this motion and pay Plaintiff’s counsel $48,000.00, for the 120 hours at an hourly rate of $400.00, that was consumed in preparation and conduct of the May 20, 2014 – May 28, 2014 trial in this matter.

MOTION FOR NEW TRIAL:

A motion for new trial asks the trial court to reexamine one or more issues of fact or law after a trial and decision by judge or jury. (CCP §§ 656, 657.) Since the right to a new trial is purely statutory, exact compliance is required: “As the motion for a new trial finds both its source and its limitations in the statutes … the procedural steps prescribed by law … are mandatory and must be strictly followed.” (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)

A new trial may be granted for: “Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” (CCP § 657(1).)

The doctrine of judicial estoppel may be invoked to prevent a party from asserting claims inconsistent with claims that party has previously asserted with success: “[A]bsent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.” (New Hampshire v. Maine (2001) 532 US 742, 749 (internal quotes omitted).) The doctrine is intended to protect the integrity of the judicial process and “to prevent parties from playing fast and loose with the courts.” (Id. at 749–750.) Judicial estoppel is an equitable doctrine a court invokes at its discretion. (Id. at 750.)

Plaintiff contends that he was denied a fair trial because the court did not allow him to impeach Defendant Ibrahim Aly (“Aly”)’s testimony with legal arguments made in Defendants’ motion for summary judgment. Specifically, Plaintiff contends that Aly, on cross-examination, testified that Plaintiff had volunteered to work on Christmas 2010; this statement was inconsistent with the position taken by Defendants in their motion for summary judgment that Aly required Plaintiff to work on December 22 and 25, 2010 because there were staff shortages on those nights; and that as a result, Plaintiff was deprived of a fair trial. Plaintiff also contends that the doctrine of judicial estoppel requires a new trial.

However, statements made by counsel in argument are not considered to be evidence and, therefore, “are not binding on the client…” (Haynes v. Hunt (1962) 208 Cal.App.2d 331, 335 — binding only if made in form of stipulation or admission; see People v. Kiney (2007) 151 Cal.App.4th 807, 815 — “statements of counsel in argument are not deemed judicial admissions unless they have the formality of an admission or a stipulation.”) Further, the undisputed material facts supporting defense counsel’s argument set forth Plaintiff’s job duties and the existence of a staff shortage, and there was no declaration from Aly in support of the motion for summary judgment stating he compelled Plaintiff to work because of a staff shortage. Moreover, the court did not preclude Plaintiff form impeaching Aly’s testimony that Plaintiff volunteered to work on December 22 and 25, 2010 – he just could not use defense counsel’s legal argument in the motion for summary judgment as impeachment evidence. In fact, Plaintiff testified that Aly forced him to work on those days. Further, the court has discretion to “exclude evidence of marginal impeachment value that would entail the undue consumption of time.” (See People v. Brown (2003) 31 Cal.4th 518, 545; Ev C § 352.) Finally, to the extent that Defendants may have asserted any inconsistent positions, Plaintiff was not prejudiced and thus, judicial estoppel is not applicable.

While Plaintiff cites to Staples v. Hoefke (1987) 189 Cal.App.3d 1397 (“Staples”) to support the contention that arguments made in Defendant’s motion for summary should be introduced into evidence for purpose of impeachment as a prior inconsistent statement of the pleader, it appears that Staples can be distinguished from the instant matter. In Staples, the court found that in a trespass and breach of lease action by a commercial photographer tenant against his lessor and another tenant, a leather products manufacturer, the trial court did not err in refusing to admit evidence of the lessor’s cross-complaint against the manufacturer, since the evidence would have been cumulative and would have consumed an undue amount of time, but that the cross-complaint would have been admissible for impeachment purposes. However, in this matter, Plaintiff did not attempt to impeach Aly with his answer or with a cross-complaint, but rather, a legal argument made in Defendants’ motion for summary judgment. Thus, the motion is denied.

Defendants also contend that Plaintiff’s memorandum of points and authorities is untimely because Plaintiff’s notice of intention to move for a new trial was served on July 3, 2014, but his points and authorities was filed and served on July 16, 2014, more than 10 days after the service. However, CRC 3.1600 only requires the service and filing within 10 days after FILING notice of intention to move for a new trial. Plaintiff filed his notice of intention with the court on July 7, 2014 and timely filed and served his points and authorities within 10 days after the filing.

Within 10 days after filing notice of intention to move for a new trial in a civil case, the moving party must serve and file a memorandum in support of the motion, and within 10 days thereafter any adverse party may serve and file a memorandum in reply. (CRC 3.1600(a).)