Motion - DEFENDANTS' MOTION TO ABATE AND/OR STAY AND MOTION TO COMPEL ARBITRATIONParty: Defendant Doherty Florida Management Inc Defendant Doherty Apple South Florida LLC May 18, 2020 (2024)

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Filing # 107637791 E-Filed 05/18/2020 04:45:48 PMIN THE CIRCUIT COURT OF THESEVENTEENTH JUDICIAL CIRCUITIN AND FOR BROWARD COUNTY, FLORIDACase No. CACE-20-003552Division: 02DORA HARTMAN,Plaintiff,veDOHERTY APPLE SOUTH FLORIDA, LLC, et. al.Defendants./DEFENDANTS’ MOTION TO ABATE AND/OR STAYAND MOTION TO COMPEL ARBITRATIONDefendants, Doherty Florida Management, Inc.', improperly named as a defendant in theAmended Complaint and Doherty Apple South Florida, LLC (“Defendants”), by and throughtheir undersigned counsel, herby file this Motion to Abate and/or Stay and Motion to CompelArbitration, and as grounds thereof state as follows:1. The instant case involves a lawsuit filed by Plaintiff, Dora Hartman (“Hartman”)alleging violations of Fla. Stat. § 760 ef seq. (“FCRA”).2. On or about August 24, 2015, Hartman knowingly and voluntarily entered into aMandatory Arbitration Agreement, which requires that all disputes between Hartman andDefendants must be submitted to and determined exclusively by binding arbitration. A copy ofthe Mandatory Arbitration Agreement is attached hereto as Exhibit “A.”' Doherty Florida Management, Inc. is named as a defendant. However, Doherty FloridaManagement, Inc. is simply a payroll company and not the employer of Plaintiff. Doherty AppleSouth Florida, LLC is the owner of the Applebee’s restaurant located at 5377 West AtlanticBlvd., Margate, Florida 33063 where Plaintiff worked as a server and, therefore, is the properemployer.36863338.1*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/18/2020 04:45:47 PM.****3. Plaintiff now improperly attempts to litigate before this Court the very claims shecontractually agreed to submit to mandatory binding arbitration. Accordingly, Defendants seekan order dismissing Plaintiff's Amended Complaint, or in the alternative, an order abating and/orstaying Plaintiff’s Amended Complaint and compelling her to submit her claims to arbitration.MEMORANDUM OF LAWCourts universally recognize the strong public policy favoring arbitration agreements andhave acknowledged that employment disputes may be subject to arbitration. The contractuallanguage contained in Plaintiff's Mandatory Arbitration Agreement encompasses and requiresarbitration of all disputes arising out of her employment relationship with Defendants.Accordingly, the Mandatory Arbitration Agreement should be enforced, and Plaintiff should becompelled to submit her claims to arbitration.Pursuant to Florida state law and the Federal Arbitration Act, (“FAA”), Plaintiff isrequired to arbitrate her claims against Defendants. The FAA, which applies to writtenarbitration provisions contained in any contract evidencing commerce, establishes a liberalnational policy favoring arbitration which is binding on all courts, state and federal. Moses H.Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941, 74 L. Ed.2d 765 (1983) (internal quotations omitted); 9 U.S.C. § 2. The FAA extends to agreements toarbitrate employment related claims. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123, 121S. Ct. 1302, 1313, 149 L. Ed. 2d 234 (2001) (“The Court has been quite specific in holding thatarbitration agreements can be enforced...without contravening the policies of congressionalenactments giving employees specific protection against discrimination prohibited by federallaw...”); Great W. Mortgage Co. v. Peaco*ck, 110 F.3d 222, 227 (3d Cir. 1997) (affirming lower36863338.1court’s finding that mandatory arbitration provision of the FAA applied to plaintiff'semployment agreement).Further, “[a]rbitration provisions are common, and their use generally favored by thecourts.” Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). Arbitration clauses are to begiven the "broadest possible interpretation to accomplish the salutory purpose of resolvingcontroversies out of court." Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664So. 2d 1107, 1108 (Fla. 3d DCA 1996). When parties contractually agree to arbitrate, a courtmust give effect to that agreement, and all arbitrable issues must be resolved through arbitrationunless arbitration has been waived. See Zager Plumbing, Inc. v. JPI Nat'l Constr., Inc., 785 So.2d 660, 662 (Fla. 3d DCA 2001).In order to determine whether an arbitration agreement should be enforced, the Courtmust determine (1) whether the parties have a valid agreement to arbitrate their dispute; (2)whether the claims at issue are within the scope of the claims covered by the agreement toarbitrate; and (3) whether the right to arbitrate has been waived. See Seifert, 750 So. 2d at 366;see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 105 S. Ct.3353-54, 87 L. Ed. 2d 444 (1985). The Mandatory Arbitration Agreement at issue here satisfiesthese inquiries.A. The Parties Entered Into an Enforceable Agreement to ArbitrateThere can be no legitimate dispute regarding the existence of an agreement to arbitratehere. Specifically, Section 2 of the FAA provides that a written arbitration provision in anycontract is valid and enforceable, except “upon such grounds as exist at law or in equity for therevocation of any contract.” 9 U.S.C. § 2. The United States Supreme Court has interpreted thatprovision as reflecting the “fundamental principle that arbitration is a matter of contract.” AT&T36863338.1Mobility LLC v. Concepcion, 563 U.S. 333, 131 8. Ct. 1740, 1745, 179 L.ED.2d 742, 751 (2011)(citations omitted). Accordingly, whether or not the parties entered into an enforceableagreement to arbitrate is governed by general contract principals.Here, the Mandatory Arbitration Agreement is enforceable. Plaintiff entered into theagreement knowingly and voluntarily, and it is undisputed that she assented to submit toarbitration any claim that may arise during the course of her employment. The MandatoryArbitration Agreement explicitly states that Plaintiff understands that the agreement is a waiverof her right to pursue claims arising during the course of her employment in the judicial andadministrative court system and that she is waiving her right to a jury trial. Once Plaintiff signedthe Mandatory Arbitration Agreement, she was presumed to know and understand the contents,terms and conditions of same. Sabin v Lowe’s of Florida, 404 So. 2d 772, 773 (Fla. 5th DCA1981). In light of the clear and unambiguous language of the Mandatory Arbitration Agreement,Plaintiff has elected arbitration as the exclusive remedy for the claims asserted in the AmendedComplaint and has clearly and unmistakably waived her right to commence litigation outside ofarbitration.B. Plaintiff’s Claims Fall Within the Scope of the Mandatory Arbitration AgreementThere is no question that an arbitrable issue exists. The matters that are subject toarbitration must be clear within the arbitration provision. Technical Aid Corp. v. Tomaso, 814So. 2d 1259, 1261 (Fla. 5th DCA 2002) (quoting Seifert, 750 So. 2d at 636). Plaintiff’s claims ofviolation of the FCRA clearly relate to her employment with Defendants, and therefore, theseclaims are subject to the arbitration provision.36863338.1Cc. Defendants have not Waived Their Right to ArbitrateDefendants have not waived their right to arbitrate. “A party waives its right to arbitrateby: (1) actively participating in a lawsuit; or (2) taking action inconsistent with the right toarbitrate.” Morrell v. Wayne Frier Manufactured Home Ctr., 834 So. 2d 395, 397 (Fla. Sth DCA2003); see also Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005).Defendants have not waived their right to arbitrate any matters related to the claims set forth byPlaintiff, because they have not actively participated in this lawsuit. Furthermore, even if there isa question about waiver, that question should be resolved in favor of arbitration and not againstit. Miller & Soloman Gen. Contractors, Inc. v. Brennan’s Glass, Inc., 824 So. 2d 288, 290 (Fla.4th DCA 2002). (citations omitted). This is because arbitration is considered the FloridaSupreme Court’s “favored” means of dispute resolution. See Turnberry Assoc. v. Service StationAid, Inc., 651 So.2d 1173 (Fla. 1995).Consistent with these principles, courts have compelled arbitration of employment-related claims where the parties have had agreements with broad, mandatory arbitration clauses,similar to that agreed to by Plaintiff. Here, by its express terms, the Mandatory ArbitrationAgreement applies to claims that arise during the course of Plaintiff's employment that wouldentitle Plaintiff to proceed in a court of law or equity. The claims asserted by Plaintiff in this caserelate solely to her employment relationship with Defendant Doherty Apple South Florida, LLC.Regardless of the legal theories pled in the Amended Complaint, the claims are factually basedon events that occurred during Plaintiff's employment. Accordingly, the claims fall within thescope of the Mandatory Arbitration Agreement and they should be referred to arbitration.In the alternative, a matter should be abated and/or stayed until such time as arbitrationhas occurred in an effort to resolve this matter without further litigation. See, e.g, Wheeler v.36863338.1Hajianpour, 688 So.2d 423 (Fla. 4th DCA 1997); Banco Bilba Vizcaya, S.A. v. Naiz, 615 So.2d233 (Fla. 3rd DCA 1993); Robinson v. Royal Bank of Canada, 462 So.2d 101 (Fla. 4th DCA1985). The purpose of a stay and/or abatement is in the interests of judicial economy and toavoid needless litigation. See, e.g. New Plan Realty Trust v. Towers Apartments, Inc., 350 So.2d99 (Fla. Ist DCA 1977).It is clearly in the interest of judicial economy, and in the best interest of all the parties,that arbitration be completed by and between Defendants and Plaintiff, pursuant to theMandatory Arbitration Agreement executed by Plaintiff.WHEREFORE, Doherty respectfully requests that this Court grant its Motion to Abateand/or stay, and Motion to Compel Arbitration, and for such other and further relief as this Courtdeems just and proper.Dated May 18, 2020.Respectfully submitted,Saul Ewing Arnstein & Lehr, LLPNorthbridge Centre, Suite 1400515 North Flagler DriveWest Palm Beach, FL33401Telephone: (561) 833-9800Facsimile: (561) 655-5551By: _/s/ Antoinette TheodossakosAntoinette TheodossakosFlorida Bar No. 178608Antoinette. Theodossakos@saul.comsusan.brown@saul.comWpb-ctdocs@saul.com36863338.1CERTIFICATE OF SERVICEI HEREBY CERTIFY that on May 18, 2020 I electronically filed the foregoing documentwith the Clerk of Court using the Florida Courts E-Filing Portal (“Portal”). I also certify that theforegoing document is being served this day on all counsel of record or pro se parties identifiedon the attached Service List in the manner specified, either via transmission of Notices ofElectronic Filing generated by the Portal or in some other authorized manner for those counsel orparties who are not authorized to receive electronically Notices of Electronic Filing.Saul Ewing Arnstein & Lehr, LLPNorthbridge Centre, Suite 1400515 North Flagler DriveWest Palm Beach, FL33401Telephone: (561) 833-9800Facsimile: (561) 655-5551By: _/s/ Antoinette TheodossakosAntoinette TheodossakosFlorida Bar No. 178608Antoinette. Theodossakos@saul.comsusan.brown@saul.comWpb-ctdocs@saul.comSERVICE LISTRuben Martin Saenz, Esq.Yadhira Ramirez-Toro, Esq.Saenz & Anderson, PLLC20900 NE 30th Avenue, Suite 800Aventura, Florida 33180msaenz@saenzanderson.comyramirez@saenzanderson.com36863338.1MANDATORY ARBITRATION AGREEMENT —- ENGLISH(Documento en espafiol se encuentra por debajo)1 acknowledge that Doherty Enterprises utilizes a system of dispute resolution which involves binding arbitration to resolveany dispute, controversy, or claim arising out of, relating to or in connection with my employment with DohertyEnterprises. As a condition of employment at Doherty Enterprises or any of its related companies, I agree to the terms ofthis Agreement because of the mutual benefits (such as reduced expense and increased efficiency) which private bindingarbitration can provide both Doherty Enterprises and myself.Land Doherty Enterprises both agree that any claim, dispute, and/or controversy (including but not limited to any claimsof employment discrimination, harassment, and/or retaliation under Title VII of the Civil Rights Act of 1964, the AgeDiscrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the UniformedServices Employment and Reemployment Rights Act, and any other applicable federal, state, or local statute, regulation orcommon law doctrine) which would otherwise require or allow resort to any court between myself and Doherty Enterprises(and/or its parents, subsidiaries, affiliates, owners, directors, officers, managers, employees, agents, and parties affiliatedwith its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoeverwith my seeking employment with, employment by, ending of my employment with, or other association with DohertyEnterprises, whether based in tort, contract, statutory, or equitable law, or otherwise, shall be submitted to anddetermined exclusively by binding arbitration.I understand that nothing in this binding Arbitration Agreement prevents me from first filing a charge orcomplaint, communicating with, or cooperating in an investigation or proceeding conducted by, the EqualEmployment Opportunity Commission (“EEOC”), the National Labor Relations Board (“NLRB”), or any otherfederal, state or local agency charged with the enforcement of any laws. However, I also understand that Ishall not be entitled to file a complaint in Court related to such charge or complaint, communication orinvestigation L agree that the arbitration and this Agreement shall be controlled by the Federal Arbitration Act. Any arbitration under thisAgreement will be held in accordance with the American Arbitration Association’s then-current Employment ArbitrationRules. The arbitrator, and only the arbitrator, will decide any and all disputes regarding whether a claim is arbitrable. Inthe event the arbitrator decides that any given matter is not arbitrable, the matter will be decided by a court of competentjurisdiction. Judgment upon award rendered by the arbitrator will be final and binding upon both parties and may beentered and enforced in any court of competent jurisdiction. I understand that I can pursue all of my substantive rightsand remedies in arbitration, including attorneys’ fee awards.Land Doherty Enterprises both agree to arbitrate solely on an individual basis, and I understand that this Agreement doesnot permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitrationproceeding. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside overany form of a representative or class proceeding. In the event this prohibition on class arbitration is deemed invalid orunenforceable, the remaining portions of this Agreement will remain in force.I UNDERSTAND BY AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH I AND DOHERTY ENTERPRISES WAIVEOUR RIGHT TO TRIAL BY JURY. I FURTHER UNDERSTAND THAT THIS BINDING ARBITRATION AGREEMENT IS A CONTRACTFOR PURPOSES OF EMPLOYMENT DISPUTE RESOLUTION ONLY. THIS AGREEMENT DOES NOT CHANGE THE AT-WILLNATURE OF MY EMPLOYMENT AND DOES NOT CONSTITUTE A CONTRACT OF EMPLOYMENT IN ANY RESPECT.ACUERDO DE ARBITRAJE OBLIGATORIOReconozco que Doherty Enterprises utiliza un sistema de resolucién de controversias que involucra un arbitraje vinculantepara resolver cualquier disputa, controversia o reclamo que surja como consecuencia de mi empleo en Doherty Enterprises0 esté relacionado con él. Como condicién de empleo en Doherty Enterprises o cualquiera de sus compafiias relacionadas,acepto los términos del presente Acuerdo debido a los beneficios reciprocos (como reduccién de gastos y mayor eficiencia)que el arbitraje vinculante privado puede brindar tanto a Doherty Enterprises como a mi.Tanto Doherty Enterprises como yo aceptamos que cualquier reclamo, disputa o controversia (incluso, por ejemplo,reclamos de discriminacién laboral, acoso o represalias conforme al Titulo VII de la Ley de Derechos Civiles de 1964, la Leyde Discriminacién por Edad en el Empleo, la Ley de Estadounidenses con Discapacidades, la ley de Licencia por RazonesMédicas y Familiares, la Ley de Derechos de Empleo y Reempleo de los Servicios Uniformados y cualquier otra norma oreglamento federal, estatal 0 local aplicable o doctrina de derecho consuetudinario) que de otro modo requeriria 0permitiria recurrir a un tribunal para un juicio entre Doherty Enterprises (incluyendo sus sociedades controlantes,subsidiarias, afiliadas, propietarios, directores, funcionarios, gerentes, empleados, agentes y partes afiliadas con susplanes de beneficios y salud de empleados) y yo que surja, se relacione o tenga alguna relacién o conexién con mibusqueda de empleo, empleo, finalizacién de mi empleo u otra asociacién con Doherty Enterprises, ya sea que sean de tipoextracontractual, contractual, legal, o de ley equitativa o de otro modo, se someterdn y serdn resueltos exclusivamentemediante arbitraje vinculante. Entiendo que ninguna cléusula de este Acuerdo de arl culante me impide que presente primero uncargo 0 denuncia, me comunique o coopere en una investigacién o proceso Ilevado a cabo por la Comisién deIgualdad de Oportunidades de Empleo (”EEOC”, por sus siglas en inglés), la Junta Nacional de RelacionesLaborales ("NLRB", por sus siglas en inglés), o cualquier agencia federal, estatal o local responsable de laaplicacién de las leyes. Sin embargo, también entiendo que no tendré derecho a presentar una denuncia en eltribunal relacionada con dicho cargo o denuncia, comunicacién o investigaciénAcepto que el arbitraje y el presente Acuerdo estarén controlados por la Ley Federal de Arbitraje. Cualquier arbitrajeconforme a este Acuerdo se celebraré de conformidad con las normas de arbitraje en el empleo vigentes de la AmericanArbitration Association. El arbitro, y solo el arbitro, decidiré todas las controversias con respecto a si un reclamo puedesometerse a arbitraje. En caso de que el drbitro decida que algiin asunto dado no puede someterse a arbitraje, el asuntose decidird en un tribunal competente. La sentencia dictada sobre el laudo por el drbitro sera definitiva y vinculante paraambas partes y puede dictarse y aplicarse en cualquier tribunal competente. Entiendo que puedo ejercer todos misderechos y recursos sustantivos en el arbitraje, incluidos los laudos por honorarios de los abogados.Tanto Doherty Enterprises como yo aceptamos arbitrar solo en forma individual y entiendo que el presente Acuerdo nopermite un arbitraje de clase ni ningtin reclamo presentado como demandante o miembro de clase en ningtin proceso dearbitraje de clase o representativo. El tribunal arbitral no puede consolidar los reclamos de mas de una persona y, de otromodo, no puede presidir en ninguna forma de proceso representativo o de clase. En caso de que esta prohibicién dearbitraje de clase se considere invalida 0 inaplicable, las partes restantes del presente Acuerdo permaneceran vigentes.ENTIENDO QUE AL ACEPTAR ESTA CLAUSULA DE ARBITRAJE VINCULANTE TANTO YO COMO DOHERTY ENTREPRISESRENUNCIAMOS A NUESTRO DERECHO A JUICIO POR JURADO. ENTIENDO ADEMAS QUE EL PRESENTE ACUERDO DEARBITRAJE VINCULANTE ES UN CONTRATO SOLO PARA LOS FINES DE LA RESOLUCION DE CONTROVERSIAS. ESTEACUERDO NO CAMBIA LA NATURALEZA A VOLUNTAD DE MI EMPLEO Y NO CONSTITUYE UN CONTRATO DE TRABAJO ENNINGUN RESPECTO.Print Preview Page 1 of 13Dora Pauline Hartman - Jj - Doherty Florida Management Inc (APFL)Document Acknowledgement Document AcknowledgementDocument Title Category Description Acknowledge Date401K Information Benefits M]__ | acknowledge that | 08/24/2015have seen the 401K Informationdocument.Anti Compliance MM) ENGLISH: 08/24/2015Discrimination & | acknowledge that |Harassment have read andAgreement understand DohertyEnterprises, Inc.’sAnti-Discriminationand Anti-Harassment Policy.| understand that anelectronic copy isalways available forme to review asneeded in UltiPro. |understand thatdiscrimination andharassment are nottolerated at DohertyEnterprises, Inc.,and | agree tocomply with suchPolicy.ESPANOL:Reconozco que heleido y entiendoDoherty Enterprises,contra ladiscriminacion Inc. yPolitica contra elacoso . Entiendoque una copiaelectronica siempreesta disponible paraque repase segunsea necesario enUltiPro . Entiendoque ladiscriminacién y elacoso no se toleranen DohertyEnterprises, Inc. , yme comprometo acumplir con dichapolitica .Arbitration of Compliance M] ENGLISH: 08/24/2015Employment | acknowledge andDisputes understand that athttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print Preview Page 2 of 13 Document AcknowledgementDocument Title Category Description Acknowledge Datethe time | applied foremployment withDoherty, | signed anArbitrationAgreement whichrequires that alldisputes betweenme and Dohertymust be submittedto and determinedexclusively bybinding arbitration.Nothing in thisbinding ArbitrationAgreement betweenme and Dohertyprevents me fromfirst filing a chargeor complaint,communicating with,or cooperating in aninvestigation orproceedingconducted by, theEqual EmploymentOpportunityCommission(‘EEOC’), theNational LaborRelations Board(‘NLRB’), or anyother federal, stateor local agencycharged with theenforcement of anylaws. However, | amnot entitled to file acomplaint in Courtrelated to suchcharge or complaint,communication orinvestigation. ESPANOL:Yo reconozco yentiendo que en elmomento en quesolicité empleo conDoherty , firmé unacuerdo de arbitrajeque requiere quetodas lascontroversias entremi y Doherty debenser presentados ydeterminadasexclusivamente porarbitraje vinculante.Nada en estehttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print PreviewPage 3 of 13 Document Title CategoryDescriptionAcknowledgementAcknowledge Date Corp America BenefitsFamily CreditUnionDell Discount BenefitsFlyerDirect Deposit ComplianceAcknowledgementDrug Free Work CompliancePlaceAcuerdo de arbitrajevinculante entre yoy Doherty meimpide primerapresentacion de unaacusacion 0 queja ,comunicarse con, 0cooperar en unainvestigaci6n oprocedimientollevado a cabo porla Comisién deIgualdad deOportunidades en elEmpleo ("EEOC"),la Junta Nacional deRelacionesLaborales("NLRB") , 0cualquier otraagencia federal ,estatal 0 localencargada de laaplicacion de lasleyes . Sin embargo,yo no tengo derechoa presentar unaqueja en la Corterelacionada condicha acusaci6n oqueja , lacomunicaci6n o lainvestigacién.| have seen and 08/24/2015reviewed theCorporate AmericaFamily Credit UnionDocumentI have seen and 08/24/2015reviewed the DellDiscount FlyerEnglish 10/28/2015| have read andunderstand theDirect DepositDocument.Espanol:He leido yentendido la fuerteDocumento directa .| have read and 08/24/2015understand the DrugFree Workplace /Drug Testing Policyhttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print Preview Page 4 of 13Document AcknowledgementDocument Title Category Description Acknowledge Dateand agree to complywith it.Health Benefits Benefits M\_ thave seen and 08/24/2015Notices reviewed the HealthBenefits NoticesHealth Benefits Compliance M]_ [have seen and 10/28/2015Notices 2015-16 reviewed the HealthBenefits NoticesLearning Benefits M]_ Ihave seen and 08/24/2015Experience reviewed theCoupon LearningExperience CouponMandatory Compliance M] Ihave read, | 10/13/2016Arbitration understand andAgreement Full agree to the(E/S) MandatoryArbitrationAgreement.Online Application Compliance For Mo oMy 08/24/2015Acknowledgement Acquired AcknowledgementApplee's — indicates that |locations in agree with each ofMiami, the following8/23/2015. statements:1. The informationthat | have providedon my onlineapplication isaccurate to the bestof my knowledgeand subject tovalidation byDoherty Enterprises,Inc.2. | authorize thepersons, schools,current employer (ifapproved by me inthe EmploymentExperience section)and otherorganizations oremployers named inthis application toprovide DohertyEnterprises, Inc.with any relevantinformation that maybe required to arriveat an employmentdecision. | herebyrelease all personshttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print PreviewPage 5 of 13 DocumentDescriptionDocument Title CategoryAcknowledgementAcknowledge Date OSHA InformationModule 2015 E/SCompliance Updatedwith Firehttps://e23.ultipro.com/pages/utility/PrintPreview htm1?USParams=containerlIdOrSource=!vjcontacted from allliability.3. | certify, underpenalty of perjury,that all of the aboveinformation is trueand complete, andfurther understandthat any falsificationor omission ofinformation, whetheron this Applicationfor Employment oron any otherdocument submittedor communicationmade during theapplication and/orinterview process,may result in denialof employment orhiring or terminationby DohertyEnterprises, Inc.and forfeiture of allrelated benefits,regardless of thetime lapse beforediscovery of thefalsification oromission.4. In the event ofemployment, |understand | amapplying foremployment whichcan be terminated atwill by me orDoherty Enterprises,Inc. at any time andthat nothingcontained in anymanual, brochure,or other DohertyEnterprises, Inc.materials shallconstitute an impliedcontract ofemployment. |understand that |am required toabide by allcompany rules andregulations.ENGLISH: 10/28/2015| acknowledge that |4/21/2020Print PreviewPage 6 of 13 Document TitleCategoryDocumentDescriptionAcknowledgementAcknowledge Date PCI Compliance5.2015https://e23.ultipro.com/pages/utility/PrintPreview htm1?USParams=containerlIdOrSource=!ComplianceExtinguisherInformationhave read DohertyEnterprises, Inc.’sOSHA InformationModule. |understand thatmaintaining a safework environmentfor myself and mycoworkers is a keyjob responsibilityand following theguideline in thisdocument help medo that. | agree tocomply with suchPolicy.ESPANOL:Reconozco que heleido DohertyEnterprises, Médulode InformacionOSHA Inc. .Entiendo que elmantenimiento deun ambiente detrabajo seguro parami y miscompafieros detrabajo es unaresponsabilidadclave de empleo ysiguiendo la pautaen este documentoayude a hacer eso .Estoy de acuerdoen cumplir condicha politica .Credit Card 10/28/2015Merchant SecurityAwarenessAcknowledgement| understand,acknowledge andagree to thefollowing:1. | will make surethat when | amhandling customercredit cardinformation that |keep all informationsecure. | do notleave in openinsecure areas;share with4/21/2020Print Preview Page 7 of 13 Document AcknowledgementDocument Title Category Description Acknowledge Dateunauthorized partiesor save theinformationelectronically.2. | always renderunreadable orcross-shred thecredit cardinformation afterauthorization.3. | never receivenor encouragecredit cardinformation to besent to me or mydepartment viaemail, textmessaging or anyother unsecuremedia.4, If need be, |always make surethat formscontaining creditcard information willbe protected bystoring it ina securelocation, handcarried or sent bycourier to abusiness officeoutside my businessarea.5. | agree to choosea difficult-to-guesspassword and |agree not to sharethis password withany other person.6. | have beenprovided, haveaccess to andunderstand alldepartmentrocedures/policiesregarding theprotection of creditcard information.7. | will attend creditcard securityawareness training.8. | understand thatthese compliancerequirements arestandardsestablished by thecredit card andbanking industry toprovide security and https://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print PreviewPage 8 of 13 Document Title CategoryDescriptionAcknowledgementAcknowledge Date PCI Compliance Compliance5.2016Sexual ComplianceHarassment andsafety of ourcustomer's creditcard information.9. | understand thatif | suspect a breachor misuse of creditcard information that| must reportimmediately todepartmentdesignated person.10. | understandand agree to followthe credit cardguidelines onreceiving andauthorizing salesand credits on creditcards.11. | understandthat all informationto which | have hadaccess as a result ofmy position cannotbe used for my ownpurposes. | am notat liberty to providethis information tothird parties withoutwritten consent ofthe departmentmanager.12. | agree to abideby the policies andother requirementsfound in Doherty'sWorking TogetherGuidelines.| have read and 10/13/2016understand theDoherty PCICompliance Policyand Procedures.| agree to followthese guidelines(hourly andmanagement).| have read andunderstand theDoherty InformationSecurity Policy.| agree to followthese guidelines(management only).| have seen both the 10/13/2016Sexual Harassmenthttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print PreviewPage 9 of 13 Document AcknowledgementDocument Title Category Description Ackn/ wledge DateRSOA Video and ResponsibleAcknowledgement Service of AlcoholVideos.Verizon Discount Benefits MI] Ihave seen and 08/24/2015reviewed theVerizon DiscountDocumentWorking Together Compliance Updated Mw ENGLISH: | certify 10/13/2016Guidelines & 12.2015 that | have reviewedApplebee's OptiMED copies of both theAppendix Dress Code Doherty Workinghttps://e23.ultipro.com/pages/utility/PrintPreview htm1?USParams=containerlIdOrSource=!Together Guidelinesand my brand-specific Appendix.My electronicacknowledgementindicates that thecontents of thesehandbooks havebeen explained tome duringorientation; that |understand thecontents of thesehandbooks and theinformationexplained to meduring orientation;and that | agree toabide by statementsand policiescontained herein. If |didn't understandsomething, | had theopportunity to asksomeone on themanagement teamto explain it to mebefore thisacknowledgement. |understand that acopy of thisdocument isavailable for myreview at anytime inthis UltiPro System.ESPANOL: Certificoque he revisadocopias tanto delDoherty trabajanjunto Directrices ymi marca especificaAppendix . Mi acusede reciboelectrénico indicaque el contenido de4/21/2020Print PreviewPage 10 of 13 Document TitleCategoryDocumentDescriptionAcknowledgeAcknowledgementDate Working TogetherGuidelines andApplebeesAppendixhttps://e23.ultipro.com/pages/utility/PrintPreview htm1?USParams=containerlIdOrSource=!ComplianceForAcquiredApplebeeslocations inMiami.8/23/2015.Mwestos manuales hansido explicadosdurante laorientacion ; queentiendo elcontenido de estosmanuales y lainformacién meexplicd durante laorientacion ; y estoyde acuerdo con lasdeclaraciones y laspoliticas contenidasen este documento .Si yo no entendiaalgo , tuve laoportunidad dePreguntar a alguienen el equipo degestion que se loexplique a mi antesde estereconocimiento.Entiendo que unacopia de estedocumento estadisponible para miopinion en cualquiermomento en esteSistema UItiPro.ENGLISH: 08/24/2015| certify that | havereviewed copies ofboth the DohertyWorking TogetherGuidelines and mybrand-specificAddendum. Myelectronicacknowledgementindicates that thecontents of thesehandbooks havebeen explained tome duringorientation; that |understand thecontents of thesehandbooks and theinformationexplained to meduring orientation;and agree to abideby statements andpolicies containedherein. If | didn'tunderstandsomething, | had the4/21/2020Print PreviewPage 11 of 13 Document Title CategoryDescriptionAcknowledgementAcknowledge Date Working Together — ComplianceGuidelines andApplebeesAppendixopportunity to asksomeone on themanagement teamto explain it to mebefore thisacknowledgement. |understand that acopy of thisdocument isavailable for myreview at anytime inthis UltiPro System.ESPANOL:Certifico que herevisado copiastanto del Dohertytrabajan juntoDirectrices y mimarca especificaAddendum . Miacuse de reciboelectrénico indicaque el contenido deestos manuales hansido explicadosdurante laorientacion ; queentiendo elcontenido de estosmanuales y lainformacion meexplicd durante laorientacion ; y estoyde acuerdo con lasdeclaraciones y laspoliticas contenidasen este documento .Si yo no entendiaalgo , tuve laoportunidad dePreguntar a alguienen el equipo degestion que se loexplique a mi antesde estereconocimiento.Entiendo que unacopia de estedocumento estadisponible para miopinion en cualquiermomento en esteSistema UltiPro .ENGLISH: | certify 10/28/2015that | have reviewedcopies of both theDoherty Workinghttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print Preview Page 12 of 13 Document AcknowledgementDocument Title Category Description Acknowledge DateTogether Guidelinesand my brand-specific Appendix.My electronicacknowledgementindicates that thecontents of thesehandbooks havebeen explained tome duringorientation; that |understand thecontents of thesehandbooks and theinformationexplained to meduring orientation;and that | agree toabide by statementsand policiescontained herein. If |didn't understandsomething, | had theopportunity to asksomeone on themanagement teamto explain it to mebefore thisacknowledgement. |understand that acopy of thisdocument isavailable for myreview at anytime inthis UltiPro System. ESPANOL: Certificoque he revisadocopias tanto delDoherty trabajanjunto Directrices ymi marca especificaAddendum . Miacuse de reciboelectrénico indicaque el contenido deestos manuales hansido explicadosdurante laorientacién ; queentiendo elcontenido de estosmanuales y lainformacién meexplicd durante laorientacion ; y estoyde acuerdo con lasdeclaraciones y laspoliticas contenidashttps://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020Print PreviewPage 13 of 13 Document TitleDescriptionAcknowledgementAcknowledge Date en este documento .Si yo no entendiaalgo , tuve laoportunidad depreguntar a alguienen el equipo degestion que se loexplique a mi antesde estereconocimiento.Entiendo que unacopia de estedocumento estadisponible para miopinion en cualquiermomento en esteSistema UItiPro.https://e23.ultipro.com/pages/utility/PrintPreview html?USParams=containerldOrSource=!_—_ 4/21/2020

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Case Number: BC624838 Hearing Date: August 5, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING DR. LAUREN PINTER-BROWN, Plaintiff, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant. Case No: BC624838 Hearing Date: August 5, 2024 Calendar Number: 14 Defendant The Regents of the University of California (the Regents) moves for a new trial and vacatur or, alternatively, remittitur of excessive damages. Plaintiff Dr. Lauren Pinter-Brown (Pinter-Brown) opposes. The Regents also makes a request or suggestion that the Court sua sponte issue judgment notwithstanding the verdict. Pinter-Brown objects to this request as an untimely motion for judgment notwithstanding the verdict. The Court DENIES the Regents motion for a new trial or, alternatively, remittitur of excessive damages. The Court declines the Regents suggestion that the Court issue judgment notwithstanding the verdict sua sponte. Pinter-Browns Request For Judicial Notice Pinter-Brown requests notice of various judgments, presumably in order to respond to the Regents arguments about comparing the damage award in the current case with other damage awards. The Court grants Pinter-Browns request for judicial notice. Motion for New Trial Legal Standard Code of Civil Procedure section 657 provides, in pertinent part, as follows: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 1. 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. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. 5. Excessive or inadequate damages. 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. 7. Error in law, occurring at the trial and excepted to by the party making the application. When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the courts reason or reasons for granting the new trial upon each ground stated. A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (Code Civ. Proc. § 657.) A motion for new trial is a creature of statute and the Court may grant a new trial only by conforming to the statutory procedures.¿ (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899-900.) Timing of Motion A motion for new trial must be served and filed either (1) After the decision is rendered and before the entry of judgment or (2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. (Code Civ Proc. § 659.) However, the Courts authority to rule on a motion for new trial expires 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial. (Code Civ. Proc. § 660.) Judgment was entered in this case on May 28, 2024 on a jury verdict. Notice of entry of judgment was mailed that same day. (Certificate of Mailing.) The Court therefore has jurisdiction to rule on these motions at any time before August 9, 2024. Proof of Constructive Discharge The Regents argue that there is an insufficiency of the evidence to justify the verdict or other decision (Civ. Proc. Code § 657(6)) on the issue of constructive discharge. In a new trial motion challenging the sufficiency of the evidence, it is the judges responsibility to determine the weight of the evidence, including consideration of the credibility of witnesses and the inferences to be drawn from the evidence. (David v. Hernandez (2014) 226 Cal.App.4th 578, 588; Casella v. Southwest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1159-1160.) To establish a constructive discharge, a plaintiff must prove that her employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employees resignation that a reasonable employer would realize that a reasonable person in the employees position would be compelled to resign. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1251.) The employer must actually know about the intolerable working conditions and fail to remedy the situation. (Id. at pp. 1249-1250; Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1270.) Constructive termination may be shown by showing a continuous pattern of discriminatory treatment over a period of years. (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056; ) Under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period. The continuing violation doctrine requires proof that (1) the defendants actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence. (Wassmann v. South Orange County Community College Distr. (2018) 24 Cal.App.5th 825, 850-851.) A plaintiff is required to prove that gender was a substantial motivating reason for the constructive discharge. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214-215, 232.) The Regents argue that there was insufficient evidence of intolerable or aggravated conduct at the time of Pinter-Browns resignation. The Regents also argue that there was insufficient evidence that the Regents knew about the intolerable working conditions, or that gender was a substantial motivating factor. After weighing the evidence and the reasonable inferences therefrom, the Court finds that there is sufficient evidence to support the jurys verdict. The evidence that the jury was entitled to credit demonstrated intolerable and aggravated working conditions for Pinter-Brown at UCLA that constituted a continuous pattern of discriminatory treatment over a period of years, including the 2015 time frame during which Pinter-Brown was forced to resign. There was evidence the jury could credit that Dr. De Vos, who worked closely with Pinter-Brown, was demeaning to her as a woman, and that he was also demeaning to a female administrator, Sherri Simpson. De Vos raged when he was told by his supervisor that he would have to answer to Pinter-Brown as the director of the program. Pinter-Brown complained about De Voss behavior to her supervisors Drs. Glaspy and Slamon for several years. Not only did they not rectify the problem, but they also began to turn on Pinter-Brown. In about 2010, Dr. Glaspy told Pinter-Brown that everybody hates her. When she brought up pay equity, Dr. Glaspy raged at her, and Dr. Slamon said that she should go to county and take care of ovarian cancer. Simpson complained directly to Slamon that Pinter-Browns treatment was gender discrimination. He brushed it off. Simpson saw this behavior continue through at least June 2013 when Simpson retired. On February 25, 2011, DeVos threatened Pinter-Brown physically and angrily. The incident was traumatic, and plays in Pinter-Browns head to this day. Pinter-Brown reported this incident under Title IX as a gender discrimination incident. Dr. Tillisch, an administrator who was represented to be the Title IX officerbut who was not in fact a Title IX officerreceived Pinter-Browns written complaint. Tillisch told Pinter-Brown that she had a reputation for being an angry woman, a diva, and that there was a different standard for a man at UCLA versus a woman. He dropped her statement of complaints in a drawer stating that no one needed to know about the complaints. Pinter-Brown received no profit sharing for 2011, and UCLA interviewed a male doctor for Pinter-Browns position. De Vos, about whom Pinter-Brown made the gender discrimination complaint, headed the DSMB. De Vos wrote Pinter-Brown on February 11, 2011 requesting additional information on various audits. (Ex. 182-2.) Later, De Vos claimed he did not write the letter and asked Glaspy to sign it instead. (Ex. 190-2.) While this took place shortly before the February 25, 2011 incident, it took place after years of the demeaning treatment of Pinter-Brown by De Vos and Glaspys and Slamons reaction to Pinter-Browns complaints relating to DeVos. Also in February 2011, the ISPRC expressed concern about violations and missing documents in Pinter-Browns clinical trials overseen by the. . . DSMB. (Exh 309-2.) The DSMB was the committee headed by De Vos. In January 2012, Glaspy wrote an email coming up with a procedure that would enable UCLA to suspend [Pinter-Brown] from doing clinical research for a couple of years. (Exh 295-1.) At about the same time, Pinter-Browns proctor, Dr. Chmielowski, recommended that Pinter-Brown be allowed to continue her research independently. In March, 2012, Pinter-Brown complained to Vice Dean Jonathan Hiatt about the problems she was experiencing, including hostility from Slamon and Glaspy, that she had reported problems with De Vos to Slamon and Glaspy, and that she expressed concerns over the audits. On April 4, 2012 the ISPRC voted 4-3 to allow Pinter-Brown to continue her research. (Ex. 417.) Glaspy was unhappy with the result, writing: Vote was four for purgatory, three for hell. Both Bob E. and I voted for the death penalty. She missed the firing squad by one vote. (Ex. 461.) Dr. Meghann Brennan, with whom Glaspy was corresponding, expressed regret that she had left the meeting early and did not vote against Pinter-Brown. (Ex. 451-1.) On April 9, 2012, Glaspy changed the minutes of the meeting to reflect a split 4-4 vote on suspending Pinter-Brown, which now included Browns vote. (Ex. 429-1, 433.) Glaspy agreed that Dr. Roth perform an independent revie of the audits. Roth did so, and recommended Pinter-Brown should not lose her research privileges. (Ex. 496.) Nevertheless, in August 2012, the ISPRC voted to suspend Pinter-Browns research privileges. On August 2, 2012, Slamon informed Pinter-Brown of her suspension. She was later told that she was being stripped of her title as the head of the lymphoma program. De Vos was installed as the lymphoma programs acting head. From that point on, Pinter-Brown stopped attending department meetings, save for one. In October 2013, Pinter-Browns research privileges were restored on a limited basis. In April 2014, UCLA appointed De Vos as permanent director. Although Slamon told Pinter-Brown that this decision would be revisited, it never was. In October 2014, Pinter-Browns research privileges were restored fully. Throughout 2015, while Pinter-Brown continued to see patients, the school did not place fellows into her clinic any longer. The only fellows placed in her clinic was placed in approximately the last two weeks she was there when she was already saying goodbye to all her patients. Her relationships with pharmaceutical companies continued to be disrupted during her final year at UCLA and beyond. At no time in 2015 did UCLA reconsider reinstating Pinter-Brown as the head of the lymphoma program. De Vos continued to supervise the program. When Pinter-Brown returned from vacation in early 2015, she came back to a false accusation of writing a bad chemo order and placing her patient at risk. This accusation was not accurate and was later withdrawn. In mid-2015, De Vos interfered with Pinter-Browns ability to conduct a clinical trial by cancelling a site initiation visit. UCLA ultimately conducted the trial after Pinter-Brown left. In May 2015, Slamon admonished Pinter-Brown not to admit so many lymphoma patients to the hospital. Towards the end of her tenure at UCLA, she ran into Slamon in an elevator. He said to her: Youre still here? as though he had expected her to be gone, making Pinter-Brown understand that he thought and hoped she was already gone. A problem with the Regents argument is that it attempts to slice into separate incidentsand to evaluate individuallyevidence from which the jury could and clearly did find a continuous pattern of conduct on the part of the [the Regents] and its employees. (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156.) The Regents attempts to focus solely on the incidents in 2015, but these incidents were the culmination of a years-long campaign to frustrate and impair Pinter-Browns ability to do her job. This many year pattern of behavior destroyed Pinter-Browns standing in her profession, her ability to function with her colleagues at UCLA, and her ability to maintain her mental health. The evidence sufficient to support the jurys finding of constructive discharge. The cases that the Regents attempts to rely upon are inapposite. This is not surprising, but instead is a result of constructive termination being a fact-specific inquiry. Each case must turn on its own facts. For example, in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, the asserted constructive termination consisted only of witnessing illegal acts of other employees, a reassignment, and low performance ratings. (Id. at p. 1254.) In Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628, the Court held that a demotion alone is not a constructive termination. (Id. at pp. 1634-1637.) In Simers, the trial court and Court of Appeal concluded that there was no evidence to support certain of the alleged mistreatment, and others asserted incidents consisted only of plaintiffs subjective reaction to standard disciplinary actions. (Simers, supra, 18 Cal.App.5th at p. 1271.) The events in Simers took place over the course of less than four months, and once the plaintiff was demoted he never came back to work. (Id. at pp.1256-1266.) Here, by contrast, there was credible evidence from which the jury could reasonably find a course of concerted, hostile, demeaning, actions against Pinter-Brown, both before and after her demotion, that lasted for years and made her work conditions objectively intolerable. (See, e.g. Thompson, supra, 86 Cal.App.4th at pp. 1168-1169 [describing the ongoing mistreatment that supported the judgment of a constructive termination].) The facts of the case are sufficient to support the jurys verdict. The Regents related argument that there is insufficient evidence that the Regents knew about the intolerable working conditions, or that gender was a substantial motivating factor, fare no better. The persons who committed or knew about the circ*mstances in which Pinter-Brown worked included high-ranking officials and supervisors, including Glaspy, Slamon, Tillisch, and Hiatt. Slamon was the person who suggested in 2015 that it was surprising that Pinter-Brown was still there. There is substantial evidence to support the jurys determination that gender was a substantial motivating factor in the mistreatment of Pinter-Brown that began no later than 2011 and lasted through 2015. This evidence includes, among many other things, the testimony of Simpson, Pinter-Browns testimony of Slamons and Glaspys reaction to her complaints against De Vos, De Voss conduct vis-à-vis Pinter-Brown, and Tillischs statements that she was known as an angry woman and a diva whose gender discrimination claims should be filed away out of sight. There are, of course, other ways the jury could have viewed the evidence. This was a hard fought trial that spanned more than twenty trial days. The Regents mounted a vigorous defense which, if successful, could have led the jury to conclude that there had been no constructive termination and no motivation on account of gender by the Regents or any of the UCLA personnel discussed above. After considering the extensive evidence for both sides, however, the jury ruled for Pinter-Brown. After weighing the evidence and inferences that come from the evidence, the Court does not find that the jury lacked sufficient evidence to do so. Whether Damages are Excessive The Regents argues that the jurys non-economic damages of $9.4 Million ($5 Million for the past and $4.4 Million for the future) are excessive. The Regents also argues that the jurys economic damages of $4.6 Million ($2.1 Million for the past and $2.5 Million for the future) are excessive. In deciding a motion for new trial on the grounds of excessive damages, the Court has the responsibility and the power to weigh the evidence. As the statute provides: A new trial shall not be granted upon the ground of excessive or inadequate damages. .. unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (Civ. Proc. Code § 657 [emphasis added].) The judge is not permitted to substitute his judgment for that of the jury on the question of damages unless it appears from the record the jury verdict was improper. (Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 406.) The Court has weighed and considered the evidence and concludes that no new trial on the grounds of excessive damages is appropriate. With respect to the noneconomic damages, Pinter-Brown submitted extensive credible evidence of the devastating effect the constructive termination had on her life and her mental health. She presented substantial credible evidence that her treatment by her employer was psychologically intolerable and led her to consider suicide. This testimony came from Pinter-Brown herself, her husband Dr. Spencer Brown, her son Joshua Brown, her treating psychiatrist, Dr. Stephen Marmer, and her forensic psychologist, Dr. Anthony Reading. Pinter-Brown considered killing herself. She sobbed while commuting to her new job at UCI and considered crashing into the median strip. Indeed, the Regents own forensic expert confirmed Pinter-Browns suicidal ideation. Pinter-Browns whole demeanor changed from the time she began experiencing problems at UCLA. While previously high energy and fun, she became withdrawn and sad. She would often cry. She experienced loss of sleep and appetite. She felt like she was being destroyed. She found it very difficult to go to work and avoided the UCLA campus. She had major depressive disorder and symptoms akin to PTSD. She felt her lifes work had been destroyed. Her physical health has suffered because of the stress she underwent. She still suffers from the loss of her reputation, and still suffers from the residuals of the depression and the PTSD. She still has trouble sleeping and intrusive, upsetting involuntary thoughts. She has a generally negative outlook, which was not the case before her problems at UCLA. All of this took place against the backdrop of the importance that UCLA previously played in Pinter-Browns life. She has had a connection to UCLA all her life, starting from when she spent time there as a young woman. In addition, she lives near UCLA. Now, she goes out of her way to avoid it. Her career was her identity. The career losses she suffered were devastating to her. The Regents relies on Briley v. City of West Covina (2021) 66 Cal.App.5th 119. There, the Court of Appeal determined that $3.5 million in noneconomic damages was excessive where the terminated plaintiff testified broadly about his distress, issues with [his] sleep, that he thought about his termination almost every day and the ordeal impacted almost every aspect of his life. (Id. at p. 139.) The plaintiff also testified that he had experienced the gamut of emotions anyone would experience upon being terminated. (Ibid. ) The plaintiff presented no evidence that the problems plaintiff described were particularly severe. (Id. at p. 142.) He reported no mental health issues and only saw a counselor once or twice. (Id. at p. 142.) Even in this extraordinarily mild case, the Court of Appeal determined that $1.1 million in noneconcomic damages were appropriate. (Id. at p. 144.) By contrast, here the evidence of non-economic damages is extensive and substantial. Each case must be decided on its own facts, and the facts of the current case support the noneconomic damages awarded by the jury. The Regents arguments about the economic damages are the same as its arguments presented at trial. These are fact arguments, and the jury rejected them. The Regents faults Pinter-Browns economist for utilizing her full time salary at UCLA in her calculations. Pinter-Brown, however, stated that if she had continued to work at UCLA, she would have done so full time. The Regents also criticizes the failure to account for the Covid-19 pandemic, but there is no evidence in the record establishing that this was an important factor. This is at most a factual criticism that the Regents could have raised in cross-examination of Pinter-Browns economist. Suggestion of Sua Sponte JNOV The Regents do not move for judgment notwithstanding the verdict, but suggest at various points in their papers that the Court sua sponte enter judgment notwithstanding the verdict. The Court does have the power to enter Judgment Notwithstanding the Verdict on a sua sponte basis. (Civ. Proc Code § 629, subd. (a).) Here, the Court sees no basis to enter such an order and declines to do so.

Ruling

Rachel Valenzuela vs. Emerzian Chiropractic Professional Corporation / COMPLEX / CLASS ACTION

Jul 30, 2024 |21CECG02138

Re: Valenzuela v. Emerzian Chiropractic Professional Corporation, et al. Superior Court Case No. 21CECG02138Hearing Date: July 30, 2024 (Dept. 501)Motion: by Plaintiffs for Final Approval of Class SettlementTentative Ruling: To continue the hearing to Tuesday, September 10, 2024, at 3:30 p.m. inDepartment 501 to allow plaintiffs to submit additional evidence in support of the finalapproval of the class settlement. Supplemental evidence, as described below, must befiled at least 10 court days before the hearing. The court will entertain a request forcontinuance to a later date, if plaintiffs needs more time.Explanation:Final Approval of Settlement California Rules of Court, rule 3.769(g), states: “Before final approval, the courtmust conduct an inquiry into the fairness of the proposed settlement.” Subsection (h)states: “If the court approves the settlement agreement after the final approval hearing,the court must make and enter judgment. The judgment must include a provision for theretention of the court's jurisdiction over the parties to enforce the terms of the judgment.The court may not enter an order dismissing the action at the same time as, or after, entryof judgment.” The court has vetted the fairness of the settlement through prior hearings, eachwith its own filings. The settlement here generally meets the standards for fairness, andthe class has approved it, with no objections or disputes and only one opt-out. Only threeof 186 notices were undeliverable. The court finds that the method of notice followed,which this court approved at the prior hearing, comports with due process and wasreasonably calculated to reach the absent class members: “Individual notice of class proceedings is not meant to guarantee that every member entitled to individual notice receives such notice,” but “it is the court's duty to ensure that the notice ordered is reasonably calculated to reach the absent class members.” [Citations.] After such appropriate notice is given, if the absent class members fail to opt out of the class action, such members will be bound by the court's actions, including settlement and judgment, even though those individuals never actually receive notice. Cooper, 467 U.S. at 874, 104 S.Ct. 2794; 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1789 (2d ed.1986).(Reppert v. Marvin Lumber and Cedar Co., Inc. (1st Cir. 2004) 359 F.3d 53, 56-57 emphasisadded.)Calculation of Class Member Payments Based on the number of class members known to be participating, Mary Butler ofSimpluris, Inc., has calculated the net settlement fund to be $122,103.57 after deductingattorney fees and costs, the administration costs of $7,500, the class representativeawards totaling $30,000, the PAGA payment and giving defendant credit for theamounts paid directly. (Butler Decl. ¶ 17.) The highest estimated class payment is$2,202.45, the average payment is $660.02, and the lowest estimated payment is $3.49.(Id. at ¶ 19.) These were calculated taking into account Payments Made Credits. (Id. at¶ 18.) The terms of the settlement indicate that putative class members who agreed tosettle their claims directly with defendants will not receive less than $100 from the classsettlement. (Settlement, § 5.C.) The declaration is unclear as to whether this clause wastaken into consideration when calculating the class member payments. Supplemental evidence is requested to confirm class members who settleddirectly with defendants before the class settlement was reached are to receive aminimum of $100.00 consistent with the terms of the Settlement Agreement. (SettlementAgreement, §5.C.)PAGA Settlement Plaintiffs also seek approval of $40,000 to be paid to settle the PAGA claim, 75% ofwhich will be paid to the LWDA pursuant to Labor Code section 2699, subdivision (i). Theamount to be paid to settle the PAGA claim appears to be reasonable. The LWDA hasbeen served with a copy of the settlement as well as preliminary approval motions, andit has not objected to the request to approve the settlement. However, there is no proofof service reflecting submission of the final approval motion to the LWDA. Supplemental evidence is requested demonstrating the request for final approvalof the PAGA settlement was submitted to the LWDA.Payment to Class Representatives Plaintiffs also seek court approval of a $10,000 payment to the each of the threenamed class representatives, Rachel Valenzuela, Melissa Amezola and VanessaCabrera. Nearly identical declarations from each are submitted with the motion for finalapproval and state each gave up pursuing individual claims of harassment and/ordiscrimination in order to pursue claims on behalf of the class. Each also estimates theyspent at least 40 hours working with their attorneys to advance the case. Plaintiffs claimthey undertook financial risk that there would be no financial compensation and theymay have had to pay defendants’ costs if the lawsuit was unsuccessful. Each also statesa google search of their name with “TotalCare” identifies this lawsuit in the search.Plaintiffs attest to continuing to face the prospect that their careers will be impacted byhaving been a named plaintiff in a class action. They each state they were successful asshown by Total Care making payments of $53,665 in backpay [this amount is included inthe total settlement as Payments Made Credits] and agreeing to pay an additional$346,335 to the class members [the balance of the settlement]. The moving papers cite to Clark v. American Residential Services, LLC (2009) 175Cal.App.4th 785, as identifying the factors courts consider when approving anenhancement award and stating the plaintiffs each have provided evidence addressingthese factors. The court in Clark also stated, “there is no ‘presumption of fairness’ as tothe amount of an enhancement.” (Id. at p. 806.) The court in Clark found the trial courtabused its discretion approving an enhancement award of $25,000 to each of the twoclass representatives where the record revealed the evidence was only of “potential risk”and “potential stigma” for having participated as a plaintiff, claims of “countless hours”of work on the case. (Id. at pp. 806-807.) “[T]he rationale for making enhancement orincentive awards to named plaintiffs is that he or she would be compensated for theexpense or risk he has incurred in conferring a benefit on other members of the class.”(Id. at p. 806.) This evidence is necessary to conclude the “enhancement was ‘necessaryto induce [the named plaintiff] to participate in the suit.’” (Id. at p. 807, quoting Matterof Continental Illinois Securities Litigation (7th Cir., 1992) 962 F.2d 566, 571.) Although the evidence here includes more specificity as to what eachcontributed to the litigation of the case compared to Clark, there is no clear expense orfinancial risk or other risk beyond speculation that there would be no compensationreceived or that her career may be impacted by having participated in this case. (Decl.of Valenzuela, Amezola, and Cabrera at ¶¶ 20 and 22.) This is not persuasive to justify anaward of the equivalent of $250 per hour to each of the named plaintiffs in addition totheir individual recovery as class members. The court intends to reduce the requested enhancement payments and approveenhancement payments of $5,000 to each of the named plaintiffs. This represents a morereasonable amount, commensurate with the evidence of risk incurred in conferring abenefit to the class and sufficient to induce the named plaintiff to participate in the suit.The remaining $15,000 set aside for enhancement payments shall be added to thecommon fund for the benefit of all class members.Attorneys’ Fees The settlement provided that the parties agreed (i.e., defendant agreed not tooppose) to fees calculated at one-third of the gross settlement amount or $133,333.33.Counsel has provided evidence of the time expended by the various attorneysrepresenting plaintiffs and the class throughout this action to support the lodestaramount, as a cross-check of the percentage-based fees requested. Lawyers for Justice, P.C. attorneys have worked 228.30 hours at “reasonableblended” hourly rate2 of $600 for an estimated $136,980 in attorney fees. The attorneys of2 Submitting a blended or average hourly rate for the attorneys who have worked on this case isnot the court’s preferred method of conducting a lodestar analysis. Ordinarily, the court expectsindividual rates for each attorney stated and commensurate with the attorney’s level ofexperience. However, the court does not believe it would be a fair use of attorney time to provideScheppach Bauer PC submit that they have worked a total of 219.30 hours. Eachattorney charges $625 per hour for an estimated $137,062.50 in attorney fees. Togetherthe estimated lodestar is $274,042.50. If the court were to reduce the hourly rates of bothfirms to a “reasonable blended hourly rate” of $450, better reflecting average rates oflocal counsel, the result is a reduced lodestar of $201,420.00. This figure exceeds the feessought of $133,333.33 and supports finding the fees requested are reasonable. The courtintends to approve the attorney fees sought in the amount of $133,333.33. On the motion for final approval of the settlement, the request for attorney feesmust also set forth in full any fee-sharing agreement between plaintiff’s attorneys. Failureto disclose a fee-sharing arrangement is in violation of the California Rules of Court, rule3.769(b), and renders the agreement unenforceable. (Mark v. Spencer (2008) 166Cal.App.4th 219, 227; Lofton v. Wells Fargo Home Mortgage (2018) 27 Cal.App.5th 1001,1018 [“concealed” attorney fee payment of $5 million was properly disallowed andawarded to the class instead].) Here, counsel have provided evidence therepresentative plaintiffs consented to the agreement. The agreed upon fee split results infees of $93,333.33 to Scheppach Bauer PC and fees in the amount of $40,000.00 toLawyers for Justice, P.C. The court intends to find that the amount requested in fees is reasonable andjustified by the efforts made and results obtained with this settlement, and approveattorney fees in the amount of $93,333.33 to Scheppach Bauer PC and attorney fees inthe amount of $40,000.00 to Lawyers for Justice, P.C.Costs The Settlement Agreement provides that plaintiffs’ counsel would be reimbursedcosts up to $20,000.00. In their motion for final approval of the settlement, counselrequests actual costs totaling $13,398.10. The request for actual costs of $10,366.00 toScheppach Bauer, PC and $3,032.10 to Lawyers for Justice, PC. are supported withevidence. (Scheppach Decl., Exh. 7; Ghosh Decl., Exh. B.) The remaining $6,601.90 of the$20,000 reserved for costs is returned to the common fund for the benefit of the classmembers and was taken into consideration in the settlement administrator’s calculationof the net settlement fund. The court is satisfied that the costs incurred are reasonable and litigation-relatedand intends to approve the costs in the amount of $10,366.00 to Scheppach Bauer, PCand $3,032.10 to Lawyers for Justice, PC.additional evidence in this form where, as here, a reduction in the average rate results in a lodestargreater than the percentage of fees sought.Administrator’s Costs The court intends to find the amount of $7,500 as requested to be reasonable, andapprove the administrator’s costs as requested. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 7/29/2024 . (Judge’s initials) (Date)

Ruling

Mendoza VS West Coast Quartz Corporation

Aug 01, 2024 |Civil Unlimited (Other Employment Complaint Case) |RG18927787

RG18927787: Mendoza VS West Coast Quartz Corporation 08/01/2024 Hearing on Motion to Compel Production filed by Luis Mendoza (Plaintiff) in Department 23Tentative Ruling - 07/31/2024 Michael MarkmanParties to Appear:Join ZoomGov Meetinghttps://alameda-courts-ca-gov.zoomgov.com/j/16061942036Meeting ID: 160 6194 2036One tap mobile+16692545252,,16061942036# US (San Jose)+14154494000,,16061942036# US (US Spanish Line)

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Motion - DEFENDANTS' MOTION TO ABATE AND/OR STAY AND MOTION TO COMPEL ARBITRATIONParty: Defendant Doherty Florida Management Inc Defendant Doherty Apple South Florida LLC May 18, 2020 (2024)

FAQs

What is defendant's motion to compel arbitration? ›

You can compel arbitration as long as you have a valid and enforceable written agreement to force the other party to submit the dispute to arbitration. For instance, if a debt collector sues you, you can file a Motion to Compel Arbitration to avoid going to court or delay the court process.

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What happens after a motion to compel arbitration is granted? ›

If, after granting the motion to compel arbitration, the district court stays the case and does not dismiss it, the FAA forbids an interlocutory appeal by the party opposing the motion to compel arbitration who desires to remain in court. See 9 U.S.C.

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What is the difference between a motion to compel arbitration and a petition? ›

According to California's rules of civil procedure, a defendant can file a Motion to Compel Arbitration instead of an Answer. However, if the motion (aka petition) is denied, the defendant will have 15 days from the denial to respond to the complaint with an Answer.

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What is a motion to stay pending arbitration? ›

A stay pending arbitration keeps the case on the court's docket and allows parties to seek relief related to the arbitration without filing a new case.

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What is the purpose of a motion to compel? ›

The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction the non-complying party for their failure to comply with the discovery requests.

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What elements must the judge consider to decide whether to compel arbitration? ›

“Thus, our Supreme Court has clearly stated that a court, before granting a petition to compel arbitration, must determine the factual issue of 'the existence or validity of the arbitration agreement. ' [Citation.]

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How long does it take to settle a case after arbitration? ›

After the hearing, the arbitrators consider the evidence and decide the case—also called rendering an award—typically within 30 days.

What happens if you win in arbitration? ›

A copy of the arbitrator's written Notice of Decision will be mailed to each party. If neither party appeals within twenty (20) days, the arbitrator's decision will become a judgment of the court. After you received your copy of the judgment, you must make a written demand of the other party to pay the judgment amount.

Does motion to compel arbitration stay time to answer? ›

Practice Reminder: A Motion to Compel Arbitration Does not Alter the Time to Answer.

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How long do you have to file a motion to compel arbitration? ›

Serve Motion to Compel Arbitration In Lieu of Answer

An answer (or other responsive pleading) must be filed and served within 30 days of service of a complaint. CCP § 412.20(a)(3). Not less than 10 days' notice of the date set for the hearing on the petition must be given.

Is a motion to compel arbitration immediately appealable? ›

If a judge denies a motion to compel arbitration, the losing party has the right to an immediate appeal of that decision. This right to appeal provides an incentive for companies to enforce their arbitration provisions, while removing the insulation from appeal that other pretrial orders enjoy.

Motion - DEFENDANTS' MOTION TO ABATE AND/OR STAY AND MOTION TO COMPEL ARBITRATIONParty: Defendant Doherty Florida Management Inc Defendant Doherty Apple South Florida LLC May 18, 2020 (2024)

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FAQs

What is defendant's motion to compel arbitration? ›

Is a motion to compel arbitration immediately appealable? ›

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