Case Number: BC658407 Hearing Date: October 19, 2018 Dept: A

Meggs v NBCUniversal

MOTION FOR SANCTIONS

Calendar: 3

Case No: BC658407

Hearing Date: 10/19/18 (cont. from 8/17/18)

Action Filed: 4/18/17

Trial: Not set

MP:

Plaintiff Camille Meggs

RP:

Defendant Arutyun Adzhemyan

ALLEGATIONS IN COMPLAINT:

Plaintiff Camille Meggs commenced this action on April 18, 2017. The action was removed to the Central District of California, and Plaintiff filed a First Amended Complaint (“FAC”). The case was then remanded back to state court.

Plaintiff is an African American woman, who has been employed by Defendants NBCUniversal Media, LLC, KNBC, and NCB Universal, LLC (“NBC Defendants”) since 1999. She alleges she sent a letter of complaint on September 28, 2016 to human resources, regarding a pattern of racist and sexual conduct in the KNBC newsroom. On January 18, 2017, human resources contacted her saying there was no discrimination. Then, on January 19, 2017, Plaintiff alleges she was assaulted by security guard, Defendant Arutyun Adzhemyan.

The FAC alleges causes of action for: (1) race discrimination – disparate treatment in violation of FEHA (Gov’t Code, §12940(a)); (2) gender discrimination – disparate treatment in violation of FEHA (Gov’t Code, §12940(a)); (3) race discrimination – disparate impact in violation of FEHA (Gov’t Code, §12940(a)); (4) gender discrimination – disparate impact in violation of FEHA (Gov’t Code, §12940(a)); (5) hostile work environment based on race in violation of FEHA (Gov’t Code §12940(j)); (6) hostile work environment based on gender in violation of FEHA (Gov’t Code §12940(j)); (7) retaliation in violation of FEHA (Gov’t Code, §12940(h)); (8) failure to prevent discrimination, harassment, or retaliation in violation of FEHA (Gov’t Code, §§12940(j)-(k)); (9) assault; (10) battery; (11) false imprisonment; (12) IIED; and (13) negligent hiring, supervision, or retention.

REQUESTED RELIEF:

Plaintiff moves for sanctions pursuant to CCP §128.7(h).

DISCUSSION:

A. Legal Standard

CCP §128.7(h) provides: “A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.”

B. Merits of Sanctions Motion

1. This is not a motion for reconsideration

Preliminarily the Court addresses Adzhemyan’s argument in opposition that Plaintiff’s motion amounts to an improper motion for reconsideration and is procedurally defective. Adzhemyan argues that the Court previously ruled on this issue on July 27, 2018, when it denied Plaintiff’s request for sanctions in her opposition to Adzhemyan’s motion for sanctions.

In its July 27, 2018 ruling, the Court stated that it declined to award sanctions in favor of Plaintiff for filing an opposition to Adzhemyan’s motion for sanctions (pursuant to CCP §128.7(c)(1)). By doing so, the Court did not foreclose Plaintiff from filing a separate motion to seek sanctions against Adzhemyan under CCP §128.7(h). Rather, subsection (h) specifically authorizes Plaintiff to bring a separate motion for sanctions. Thus, this motion does not constitute an improper motion for reconsideration and the merits of the motion will be considered.

2. Merits of the Motion

Plaintiff moves for CCP §128.7(h) sanctions against Adzhemyan and his counsel, arguing that Adzhemyan’s motion for sanctions was brought primarily for an improper purpose and unnecessarily delayed the litigation because it failed to provide the required 21-day notice for a sanctions motion.

Plaintiffs argue that the draft version of Adzhemyan’s sanctions differed from the actual notice of the motion for sanctions filed with the Court and that this is a ground to impose sanctions against Adzhemyan and his counsel because the 21-day “safe harbor” notice period never commenced. “A formal noticed motion is required to being the 21-day period.” (Galleria Plus, Inc. v. Hanmi Banki (2009) 179 Cal.App.4th 535, 538.) Because section 128.7 is designed to be remedial and not punitive, strict compliance with the statute’s notice provisions serves its remedial purposes and underscores the seriousness of the motion. (Id.) For example, in Galleria, the moving party served the notice of sanctions motions, which stated that the motion would come for hearing “on AAA at BBB”. The court in Galleria found that the document failed to specify when the motion would be made, rendering it fatally defective.

While it may be true that the draft and filed versions of Adzhemyan’s motion papers contained certain differences such that the 21-day “safe harbor” notice period did not commence (i.e., inconsistencies with the time of hearing and inclusion of a declaration in the filed motion), this in itself is not sufficient to find that Adzhemyan acted solely for an improper purpose to harass and unnecessarily cause a delay in the litigation, such that sanctions should be imposed against Adzhemyan. Rather, such failure to abide with the safe harbor provision provided a basis to deny Adzhemyan’s motion for sanctions. Thus, this will not be a basis upon which Plaintiff’s motion for sanctions will be granted. The court might view the motivation in filing the motion as an attempt to put teeth into defendant’s attempt to cut short a thin case on plaintiff’s part.

3. Parties’ Discussion of Merits of Plaintiff’s Action

Plaintiff also argues that her counsel discussed with defense counsel the merits of her action against Adzhemyan. Plaintiff’s counsel, Archibald M. Smith, IV, sent defense counsel a letter on March 9, 2018 regarding Adzhemyan’s proposed sanctions motion, arguing that Adzhemyan’s motion was improperly based on his position that he is not Plaintiff’s employer or NBC’s employee. (Smith Decl., Ex. C.) Mr. Smith agreed that Adzhemyan was not Plaintiff’s employer but rather that Adzhemyan may be liable as an employee of NBC or as one who aided and abetted NBC’s conduct (irrespective of whether he is/was an employee of NBC).

Although Plaintiff may have apprised Adzhemyan that his motion for summary adjudication addressed the wrong allegations, this too does not show that Adzhemyan or his counsel’s actions in bringing his motion constitutes improper conduct that is subject to sanctions. Further, there is not credible claim that there was a delay in the proceedings or increased cost of the litigation because Plaintiff’s counsel’s letter (regarding the sanctions motion) apprising Adzhemyan about the defects in his motion for summary adjudication were essentially the same arguments Plaintiff raised in her opposition to the motion for summary adjudication.

Finally, in denying Adzhemyan’s motion for summary adjudication, the Court denied the motion largely based on the allegations and Labor Code references to “aiding and abetting” an employer in discrimination and retaliation. The Court’s order did not reflect any finding that Adzhemyan filed his motion in bad faith or that he brought it for an improper purpose. Even though Adzhemyan’s motion was ultimately denied based on the standards for a motion for summary adjudication under CCP §437c and attendant case law, Adzhemyan pointed out the lack of substance of Plaintiff’s FEHA allegations against him in this action. Although Adzhemyan’s motion for summary adjudication missed the mark in addressing those causes of action as framed by the pleading, various deficiencies in those claims against Adzhemyan cannot be ignored.

Thus, Adzhemyan’s filing of his motion for summary adjudication too will not be a basis to award sanctions to Plaintiff.

Accordingly, the Court will deny Plaintiff’s motion for sanctions against Adzhemyan.

RULING:

Deny Plaintiff’s motion for CCP §128.7(h) sanctions.

EX PARTE APPLICATION FOR ORDER THAT
THE DISCOVERY REFEREE CONFIRM AND/OR CLARIFY HIS FINDINGS OR TO SHORTEN THE
TIME TO HEAR A MOTION

Calendar: Add on
(#3)

Case No: BC658407

Hearing Date: 10/26/18

Action Filed: 4/18/17

Trial: Not set

MP:

Defendants NBC Universal Media, LLC, NBC Subsidiary
(INBC-TV) LLC, NBCUniversal, LLC, and Comcast Corporation

RP:

Plaintiff Camille Meggs

ALLEGATIONS IN COMPLAINT:

Plaintiff Camille Meggs commenced this action on April
18, 2017. The action was removed to the
Central District of California, and Plaintiff filed a First Amended Complaint
(“FAC”). The case was then remanded back
to state court.

Plaintiff
is an African American woman, who has been employed by Defendants NBCUniversal
Media, LLC, KNBC, and NCB Universal, LLC since 1999. She alleges she sent a letter of complaint on
September 28, 2016 to human resources, regarding a pattern of racist and sexual
conduct in the KNBC newsroom. On January
18, 2017, human resources contacted her saying there was no
discrimination. Then, on January 19,
2017, Plaintiff alleges she was assaulted by security guard, Defendant Arutyun
Adzhemyan.

The
FAC alleges causes of action for: (1) race discrimination – disparate treatment
in violation of FEHA (Gov’t Code, §12940(a)); (2) gender discrimination – disparate
treatment in violation of FEHA (Gov’t Code, §12940(a)); (3) race discrimination
– disparate impact in violation of FEHA (Gov’t Code, §12940(a)); (4) gender
discrimination – disparate impact in violation of FEHA (Gov’t Code, §12940(a));
(5) hostile work environment based on race in violation of FEHA (Gov’t Code
§12940(j)); (6) hostile work environment based on gender in violation of FEHA
(Gov’t Code §12940(j)); (7) retaliation in violation of FEHA (Gov’t Code,
§12940(h)); (8) failure to prevent discrimination, harassment, or retaliation
in violation of FEHA (Gov’t Code, §§12940(j)-(k)); (9) assault; (10) battery;
(11) false imprisonment; (12) IIED; and (13) negligent hiring, supervision, or
retention.

REQUESTED RELIEF:

Defendants NBC Universal Media, LLC, NBC Subsidiary
(INBC-TV) LLC, NBCUniversal, LLC, and Comcast Corporation (“NBC Defendants”) seek
an order that the Discovery Referee confirm and/or clarify his findings, or
alternatively

DISCUSSION:

Background

On October 16, 2018, NBC Defendants applied ex parte for
an order that the Discovery Referee confirm and/or clarify his findings or, in
the alternative, an order shortening time to hear a motion on the same.

The Court continued the ex parte motion to October 19,
2018.

Ex Parte

CRC
Rule 3.1202 states that the applicant of an ex parte application must make an
affirmative factual showing in a declaration containing competent testimony
based on personal knowledge of irreparable harm, immediate danger, or any other
statutory basis for granting relief ex parte.
(CRC Rule 3.1202(c).)

CRC
Rule 3.1204 provides that an ex parte application must state with specificity
the nature of the relief requested and the date, time, and place for the
application; and attempt to determine whether the opposing party will oppose
the application. (CRC Rule
3.1204(a).) The ex parte application
must be accompanied by a declaration regarding notice stating that notice was
given, the applicant in good faith attempted to inform the opposing party but
was unable to do so, or for reasons specified the applicant should not be
required to inform the opposing party.
(CRC Rule 3.1204(b).)

A review of the
declaration of Marrian S. Chang, defense counsel, reveals that NBC Defendants
are bringing this application in order to request that the Court order the
Discovery Referee to confirm or clarify his findings with regard to certain
discovery requests. (Chang Decl., ¶¶1, 7.) Ms. Chang also states that she provided
notice the day prior to the ex parte hearing regarding the application.

However, as pointed out
by Plaintiff in opposition to the ex parte application, Ms. Chang’s declaration
is devoid of facts showing why ex parte relief is necessary. Specifically, there is no showing of
irreparable harm, immediate danger, or any other statutory basis for granting
relief on an ex parte basis. This is
Plaintiff’s sole argument in opposition. At most, NBC Defendants argue that the Court’s
hearing on the Discovery Referee’s findings is schedule for October 19, 2018,
and the earliest they can reserve a motion date is November 9 or December 7,
2018. However, this does not amount to a
showing of irreparable harm or immediate danger.

Rather, the parties
should be prepared to update the Court at the October 19, 2018 regarding the
status of the Discovery Referee’s finding.
To the extent any confirmation or clarification of the findings need to
be made, NBC Defendants should request such relief by reserving a hearing date
with the Court Reservation System and filing and serving a noticed motion with
supporting case law for NBC Defendants’ requested relief. It should also be noted that no trial date
has been set for this case, such that NBC Defendants
would not be prejudiced.

RULING:

Deny the ex parte application for an order that the
Discovery Referee confirm and/or clarify his finding, or to shorten the time to
hear a motion on the same.