Local 1000's Objections To Sherles Evidence

ORIGf^fA'
2 3 4 5 6 7 8 9
10
T3 O O)
Charles L. Post, State Bar No. 160443 Meagan D. Christiansen, State Bar No. 240679 weintraub tobin chediak coleman grodin
LAW CORPORATION
400 Capitol Mall, 11th Floor Sacramento, CA 95814 (916) 558-6000 - Main (916) 446-1611 - Facsimile Attorneys for Defendants Service Employees International Union Local 1000, Rich Boyd and Maria Patterson Felix De La Torre, Chief Counsel (SBN 204282) Sen/ice Employees International Union, Local 1000 1808 14'' Street Sacramento, CA 95811 (916) 554-1279-Telephone (916) 554-1272 - Facsimile Attorneys for Defendants Service Employees International Union Local 1 000, Rich Boyd and Maria Patterson
11 12 13 14 15
o
c
o
e g
E
o
'S < u .c. u
.Q
IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO
2=
16 17 18 19 20 21 22 23 24 25 26 27 28
MECHELLE SHERLES; and ROBYN SHERLES, Plaintiffs, vs. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000; SERVICE EMPLOYEES INTERNATIONAL UNION; RICH BOYD, an individual; MARIA PATTERSON, an individual; and DOES 1-100, inclusive. Defendants.
Case No.: 34-2011-00114745 DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000, RICH BOYD AND MARIA PATTERSON'S OBJECTIONS TO PLAINTIFFS' EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION O F ISSUES [Reservation No. 1840877] Date: Time: Judge: November 1, 201 3 2:00 p.m. Hon. David I. Brov/n
= 1 25
Dept.: 53
Complaint Filed: November 29, 201 1 Trial Date: N/A
{1691139. DOC;}
Defs' Objections to Plaintiffs' Evidence re MSJ/MSA
1 2 3 4 5 6 7 8 9 10
T5 O
k.
Defendants Sen/ice Employees International Union Local 1000 ("Local 1 0 0 0 " ) , Rich Boyd ("Boyd") and Maria Patterson ("Patterson") (collectively "Defendants") hereby object to
the following evidence submitted by Plaintiffs in opposition to Defendants' motion for summary judgment or, in the alternative, for summary adjudication of issues as follows: 1. DECLARATION O F NILESH CHOUDHARY Plaintiff's Evidence Defendant's Objection Court's Ruling
The entire Declaration of Nilesh Choudhary is inadmissible. (page 1, lines 22-24)
11 12 13 14 15
O
O)
c re E
a >
o o
re ' B o .c u
c !o
The Declaration fails to assert that counsel would testify based on his own knowledge to the alleged facts contained in this declaration. Cullincini V. Vernon (1975) 53 Cal. App. 3d 9 0 8 , 9 1 4 . (An attorney's declaration is usually insufficient, unless counsel is able to show personal knowledge of the authenticating facts.) The testimony therefore lacks foundation and is inadmissible hearsay.
Sustained: Overruled:
2 =
._
= 1 c
u
16 17 18 19 20 21 22 23 24 25 Paragraph 3 (page 2 , lines 4-8) Paragraph 2 (page 2 , lines 1 -3)
5 2
Hearsay. Cal. Evid. Code section 1200. Failure to authenticate document. Cal. Evid. Code section 1 4 0 0 1401. The declarant has failed to testify that the attached document is a true, correct a n d / o r complete copy Hearsay. Cal. Evid. Code section 1200. Failure to authenticate document. Cal. Evid. Code section 14001401.
26 27 28
{1691139.DOC;}
1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Plaintiff's Evidence
Defendant's Objection
Court's Ruling
The declarant has failed to testify that the attached document is a true, correct and/or complete copy.
SUPPLEMENTAL DECLARATION O F NILESH C H O U D H A R Y Plaintiff's Evidence Defendant's Objection Court's Ruling
The entire Supplemental Declaration of Nilesh Choudhary is inadmissible. (page 1 , lines 22-24)
The Declaration fails to assert that counsel would testify based on his own knowledge to the alleged facts contained in this declaration. Cullincini V. Vernon (1975) 53 Cal. App. 3d 9 0 8 , 9 1 4 . (An attorney's declaration is usually insufficient, unless counsel is able to show personal knowledge of the authenticating facts.) The testimony therefore lacks foundation and is inadmissible hearsay.
Paragraph 2 (page 2 , lines 1 -3)
Failure to authenticate document. C a l . Evid. Code section 1 4 0 0 - 1 4 0 1 . The declarant has failed to testify that the attached document is a true, correct and/or complete copy.
{1691 139.DOC;}
1 2 3 4 5 6 7 8 9 10
a o c re E a o u re '-a o J: u
CONFIDENTIAL DECLARATION O F NILESH CHOUDHARY Plaintiff's Evidence Defendant's Objection Court's Ruling
The entire Confidential Declaration of Nilesh Choudhary is inadmissible. (page 1, lines 22-25)
The Declaration fails to assert that counsel would testify based on his own knowledge of the alleged facts contained in this declaration. Cullincini V. Vernon (1975) 53 Cal. App. 3d 908, 914. (An attorney's declaration is usually insufficient, unless counsel is able to show personal knowledge of the authenticating facts.) The testtmony therefore lacks foundation and is inadmissible hearsay.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paragraph 2 (page 2, lines 1 -4) Paragraph 2 (page 2, lines 2-4), (Exhibit 1) "It references the depression that Plaintiff was suffering from as a result of the sexual harassment incident involving Richard Boyd and time taken off as a result and prescriptions provided as a result."
c n
= 1 5 I
Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). Nothing in "Exhibit 1" expresses or supports the declarant's opinion in this paragraph. Furthermore, to the extent that the declarant is interpreting medical records, the declarant seeks to offer unqualified expert testimony. Failure to authenticate document. Cal. Evid. Code section 1400-1401. The declarant has failed to testify that the attached
{1691139.DOC;}
1 2 3 4 5 6 7 8 9
10
T5 O k_ O)
Court's Ruling
document is a true, correct a n d / o r complete copy. Paragraph 2 (page 2 , lines 1 -4) Hearsay, Cal. Evid. Code section 1200. The declarant offers no evidence regarding how these documents were maintained. Paragraph 2 (page 2 , lines 1-4) (Exhibit 1) Relevance, Cal. Evid. Code sections 2 1 0 , 3 5 0 . The declaration contains no evidence establishing any connection between an alleged "sexual harassment incident" and the attached records. The declarant therefore offers no admissible evidence to establish how this alleged "fact" has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action. Paragraph 3 (page 2 , lines 5-7) (Exhibit 2) Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). Nothing in "Exhibit 2 " expresses or supports the declarant's opinion in this paragraph. Furthermore, to the extent that the declarant is interpreting medical records, the declarant seeks to offer unqualified expert testimony. Sustained: Overruled: Sustained: Overruled: Sustained: Overruled:
11 12 13 14 15
o
c re
E o
'u a
o u re
.c u
XI
2=
1
SJ 2
16 17 18 19 20 21 22 23 24 25 26 27 28
"...attached to this declaration are physical therapy, prescriptions, and related treatment records for the 'body slam' that Plaintiff [sic] from Sophia Perkins."
{1691 139.DOC;}
1 2 3 4 5 6 7 8 9
10
a o
O)
Court's Ruling
Paragraph 3 (page 2 , lines 5-7) (Exhibit 2)
Failure to authenticate document. Cal. Evid. Code section 1 4 0 0 - 1 4 0 1 . The declarant has failed to testify that the attached document is a true, correct a n d / o r complete copy.
Paragraph 3 (page 2 , lines 5-7) (Exhibit 2)
Hearsay, Cal. section 1200.
Evid. Code Sustained:

Overruled:
11 12 13 14 15
o
The declarant has offered no evidence regarding how these documents were maintained. Paragraph 3 (page 2 , lines 5-7) (Exhibit 2) Relevance, Cal. Evid. Code section 3 5 0 . The declaration contains no evidence establishing any connection between an alleged "body slam" or any "sexual harassment" and the attached records. The declarant therefore offers no admissible evidence to establish how this alleged "fact" has any tendency in reason to prove or disprove any fact that is of consequence to the action. Paragraph 4 (page 2 , lines 10-12) "...attached to the declaration are Plaintiff's physiological/psychiatric records relating to incidents of the interview by Paul Harris, 'body slam' incident involving Sophia Perkins, and sexual harassment incident involving Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). Nothing in "Exhibit 3 " expresses or supports the Sustained: Overruled: Sustained: Overruled:
c re
E
0)
u re u c ! 5
T3 (U
2=
16 17 18 19 20 21 22 23 24 25 26 27 28
^1
25
{1691 139.DOC;}
1 2 3 4 5 6 7 8 9 10
T3 O at
Court's Ruling
Richard Boyd. Plaintiff's diagnosis of post-traumatic stress disorder/depression, related treatment, and prescriptions are included in this records."
declarant's opinion in this paragraph that the records relate in any way to a "body slam," harassment, or an interview with Paul Harris. Furthermore, to the extent that the declarant is interpreting medical records, the declarant seeks to offer unqualified expert testimony. Failure to authenticate document. Cal. Evid. Code section 1 4 0 0 - 1 4 0 1 . The declarant has failed to testify that the attached document is a true, correct a n d / o r complete copy. Hearsay, Cal. Evid. Code section 1200. The declarant has offered no evidence regarding how these documents were maintained. Sustained: Overruled:
Paragraph 4 (page 2 , lines 8-12)
11 12 13 14 15
o
o o re 'B o
j
c re E o
Paragraph 4 (page 2 , lines 8-12)
Sl
u
.Q
2=
16 17 18 19 20 21 22 23 24 25
Paragraph 4 (page 2, lines 8-12)
=1
c 25
26 27 28
Relevance, Cal. Evid. Code section 3 5 0 . The declaration contains no evidence establishing any connection between an alleged "body slam" or any "sexual harassment" and the attached records. The declarant therefore offers no admissible evidence to establish how this alleged "fact" has any tendency in reason to prove or disprove any fact that is of consequence to the action.
{1691139.DOC;}
1 2 3 4 5 6 7 8 9 10
TJ O C
DECLARATION O F ROBYN SHERLES' Plaintiff's Evidence Defendant's Objection Court's Ruling
The entire Declaration of Robyn Sherles is inadmissible.
Hearsay, Cal. Evid. Code section 1200. This declaration contains no testimony stating that it is made based on the declarant's personal knowledge. Hearsay, Cal. Evid. Code section 1200. According to Plaintiff's counsel, who has attached this declaration as an exhibit his own, the original signature of Robyn Sherles is unavailable because the witness is in Southern California. A witness' presence in another location, especially where that location is within the same state does not supportPlaintiff's assertion that the witness is unavailable.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Paragraph 3 "...she sustained physical and emotional injuries..."
re E .2 o u m
' u o
.c u
J2
2 c o
=1
.Is
2 I 2s
Inadmissible unsupported opinion of declarant, lacks foundation. Hoover v. Thomson (1985)167 Cal. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot nse to the dignity of substantial evidence.").
26 27 28
' This declaration was not submitted in support of Plaintiffs' O p p o s i t i o n . It is instead attached only to the Supplemental Declaration of Nilesh Choudhary, who admits that the declarant was unavailable to provide her original signature. By submitting these objections SEIU does concede that this declaration should be considered by the court. SEIU only provides these objections to avoid waiving them should the court conclude that it can consider its contents.
{1691139.DOC;}
1 2 3 4 5 6 7 8 9
10
T3 O
Court's Ruling
The declarant states only her unfounded opinion that Mechelle Sherles sustained physical and emotional injuries. No facts are offered to support this opinion, additionally, to the extent that the declarant is making a determination as to any medical condition the declarant is offering an unqualified expert opinion.
11 12 13 14 15 16
o
5.
DECLARATION O F JAMES BRIGGS Defendant's Objection Court's Ruling
c re
o u re
'S
0)
The entire Declaration of James Briggs is inadmissible.
.c u c
! Q
0)
Hearsay, Cal. Evid. Code section 1200, lacks foundation. This declaration contains no testimony stating that it is made based on the declarant's personal knowledge. Averments in a declaration must state that the facts alleged are within the personal knowledge of the affiant (and thus not hearsay), and that the affiant can testify competently thereto. House v. Lata, (1960) 180 Cal. App. 2d 4 1 2 , 4 1 6 .
2=
.ES 25
2 I 18
19 20 21 22 23 24 25 26 27 28
= 1 17
Paragraph 4 (entire paragraph)
Relevance, Cal. Evid. section 3 5 0 . The declarant's
Code
interactions
{1691139.DOC;}
1 2 3 4 5 6 7 8 9 10 a o
k_
Court's Ruling
with the "Lavender Committee" have no connection with the events alleged by Plaintiffs in this case, nor does the declarant even attempt to establish such a connection. Accordingly, the declarant has offered no admissible evidence to establish how this alleged "fact" has any tendency in reason to prove or disprove any fact that is of consequence to the action. Paragraph 5 (page 2 , lines 18-21) "I believe I was removed from this position for making a complaint about a member of the Union who was a supporter of the Union administration...it is my opinion this is what happened to me." Inadmissible unsupported opinion of declarant, lacks foundation. Hoover v. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant states only his subjective belief and speculation regarding the reason(s) why he was removed from his position on the "Lavender Committee." Sustained: Overruled:
11 12 13 14 15
o
c re E o o u JC re
T3
O)
(l>
c n
2=
16 17 18 19 20 21 22 23 24 25
=1
2a
.1 8 2 *
Paragraph 5 (page 2 , lines 18-21) "I believe I was removed from this position for making a complaint about a member of the Union who was a supporter of the Union administration...it is my opinion this is what happened to me."
Relevance, Cal. Evid. section 3 5 0 .
Code
26 27 28
The declarant's purported experience with the Union has no connection with the events alleged by Plaintiffs in this case, nor does the declarant even attempt to establish such a connection. Accordingly, the declarant has offered no
{1691139.DOC;}
10
Court's Ruling
2 3 4 5 6 7 8 9
10
T3 O
admissible evidence to establish how this alleged "fact" has any tendency in reason to prove or disprove any fact that is of consequence to the action.
6.
DECLARATION O F SUSY DELLA CASA-MILLS Defendant's Objection Court's Ruling
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The entire Declaration of Susy Delia Casa-Mills is inadmissible. (page 1, lines 21-23)
Hearsay, lacks foundation, Cal. Evid. Code section 1200. Averments in a declaration must state that the facts alleged are within the personal knowledge of the affiant (and thus not hearsay), and that the affiant can testify competently thereto. House v. Lola, (1960) 180 C a l . A p p . 2d 4 1 2 , 4 1 6 . This declaration contains no testimony stating that it is made based on the declarant's personal knowledge.
c re
E
a o
u
T3
O
u
.a
= 1 2I
c 2 s
Paragraph 3 (page 2 , line 3-7) "During my time working with Paul Harris he made statements to me such as...'gay people make me sick to my stomach, and what is worse is inter-racial, gay couples.' These comments were directed toward the
Hearsay, Cal. Evid. Code section 1200. Statements allegedly made by Mr. Harris represent statements that were made "other than by a witness while testifying at the hearing and that [are] offered to prove the truth of the matter stated." The statements therefore are
{1691139.DOC;}
1 1
1 2 3 4 5 6 7 8 9
10
T3 O
Court's Ruling
relationship that Mechelle Sherles had with Robyn Sherles. Paragraph 3 (page 2 , line 3-7) "During my time working with Paul Harris he made statements to me such as...'gay people make me sick to my stomach, and what is worse is inter-racial, gay couples.' These comments were directed toward the relationship that Mechelle Sherles had with Robyn Sherles.
inadmissible hearsay.
Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant provides no evidence to support her subjective opinion that the statements allegedly made by Mr. Harris were related in any way to Mechelle a n d / o r Robyn Sherles.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
c re
E a
o
o
JC
re
'X3
c n 2 c o
Paragraph 3 (page 2 , line 3-7) "During my time working with Paul Harris he made statements to me such as...'gay people make me sick to my stomach, and what is worse is inter-racial, gay couples.' These comments were directed toward the relationship that Mechelle Sherles had with Robyn Sherles. Paragraph 4 (page 2 , lines 8-1 0) "I am a close friend of Robyn Sherles and when she and Mechelle Sherles filed a lawsuit against SEIU Local 1 0 0 0 , Mr. Harris told me that I could no longer be friends
Relevance, Cal. Evid. Code section 2 1 0 , 3 5 0 . The declarant offers no admissible evidence to establish how this alleged statement has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action.
=1
2I
2 s
Hearsay, Cal. Evid. Code section 1200. Statements allegedly made by Mr. Harris at best represent statements that were made "other than by a witness while testifying at the hearing and that [are] offered to prove the truth of the matter stated."
{1691 139.DOC;}
12
1 2 3 4 5 6 7 8 9
10
c
T3 C T ) C
Court's Ruling
with Robyn Sherles."
The statements therefore are inadmissible hearsay. Relevance, Cal. Evid. Code section 2 1 0 , 3 5 0 . The declarant offers no admissible evidence to establish how this alleged statement has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action. Hearsay, Cal. Evid. Code section 1 2 0 0 . Statements allegedly made by Mr. Harris at best represent statements that were made "other than by a witness while testifying at the hearing and that [are] offered to prove the truth of the matter stated." The statements therefore are inadmissible hearsay. Sustained: Overruled:
Paragraph 4 (page 2 , lines 8-10) "I am a close friend of Robyn Sherles and when she and Mechelle Sherles filed a lawsuit against SEIU Local 1 0 0 0 , Mr. Harris told me that I could no longer be fnends with Robyn Sherles." Paragraph 5 (page 2 , lines 11-14) "He further made the comment, which was in the context of me wearing a short sleeve top, that the following are things that he hares: 1) Women having exposed bra straps; 2) gay people; 3) fat people; and 4) tattoos. I believe that Mr. Harris is biased against women, and these statements illustrate that." Paragraph 5 (page 2 , lines 11-14)
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
re
E o
o
u
JC
re
o .c u c la
TJ
2=
Sl . ES
25
=1
"He further made the comment, which was in the context of me wearing a short sleeve top, that the following are things that he hares: 1) Women having exposed bra straps; 2) gay people; 3) fat people; and 4) tattoos. I believe that Mr. Harris is biased against women, and these statements illustrate
that."
{1691139.DOC;}
13
1 2 3 4 5 6 7 8 9
10
T3 O
Court's Ruling
Paragraph 5 (page 2 , line 13-14) "I believe that Mr. Harris is biased against women, and these statements illustrate that."
Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant provides no admissible evidence to support her subjective opinion that Mr. Harris harbors any "bias against women."
11
Paragraph 5
c re
E 0) o
u
JC
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
(page 2 , line 13-14) "I believe that Mr. Harris is biased against women, and these statements illustrate that."
re .c u c ! 5 2 c
TJ 0)
Sl C o
o
=1
25
Paragraph 6 (page 2 , lines 15-21) "I recall Paul Harris speaking of a meeting that Brian Schroederand Paul Harris had with Mechelle Sherles in Brian Schroeder's office shortly offer she made a complaint regarding Richard Boyd. It was within a day or so of the meeting when Harris told me that it had lasted a long time, and that they 'kept Mechelle Sherles in Brian's office much longer than was necessary.' Paul said ... 'this
Hearsay, Cal. Evid. Code section 1200. Statements allegedly made by Mr. Harris at best represent statements that were made "other than by a witness while testifying at the hearing and that [are] offered to prove the truth of the matter stated." The statements therefore are inadmissible hearsay.
{1691139.DOC;}
14
1 2 3
Court's Ruling
was a meeting she would remember for the rest of her life,' and then he chuckled."
Paragraph 6 (page 2 , lines 15-21) "I recall Paul Harris speaking of a meeting that Bnan Schroeder and Paul Harris had with Mechelle Sherles in Brian Schroeder's office shortly offer she made a complaint regarding Richard Boyd. It was within a day or so of the meeting when Harris told me that it had lasted a long time, and that they 'kept Mechelle Sherles in Brian's office much longer than was necessary.' Paul said ... 'this was a meeting she would remember for the rest of her life,' and then he chuckled."
8 9
10
a
o c re E o o u
JC
11 12 13 14 15
o
re
T>
o sz u
J3
2 =
16 17 18 19 20 21 22 23 24 25 26 27 28
^1
2 s
Paragraph 7 (page 2 , lines 22-25) "It was my experience with Horns that he would use his authority and position to try and intimidate people. He did this to me on many occasions as well. Working for Paul Harris made me feel like a 'puppet' instead of a valued employee, and because I was in fear of losing my job, I did as I was told."
Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant provides no evidence to support her subjective feelings regarding working with Mr. Harris
{1691139.DOC;}
15
1 2 3 4 5 6 7 8 9 10
T3 O
Court's Ruling
Paragraph 7 (page 2 , lines 22-25) "It was my experience with Harris that he would use his authority and position to try and intimidate people. He did this to me on many occasions as well. Working for Paul Harris made me feel like a 'puppet' instead of a valued employee, and because I was in fear of losing my job, I did as I was told."
Relevance, Cal. Evid. Code section 2 1 0 , 3 5 0 . The declarant offers no admissible evidence to establish how this alleged statement has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action. The declarant's subjective opinions about working with Mr. Harris are unrelated to any events alleged to have taken place between Mr. Horns and Plaintiff Mechelle Sherles.
11 12 13 14 15
o
c re E o u
JC
re
T3 01
u
JD
DECLARATION O F ELLEN CLEMENTE Plaintiff's Evidence Defendant's Objection Court's Ruling
2 = 16 17 18
=1
2 I .E S 2 s 5J S
The entire Declaration of Ellen Clemente is inadmissible. (page 1, lines 21 -24)
19 20 21 22 23 24 25 26 27 28
Hearsay, Cal. Evid. Code section 1200. This declaration contains no testimony stating that it is made based on the declarant's personal knowledge.
Averments in a declaration must state that the facts alleged are within the personal knowledge o f t h e affiant and thus not hearsay, and that the affiant can testify competently thereto. House v. Lola, (1960) 180 Cal. App. 2d 4 1 2 , 4 1 6 .
{1691139.DOC;}
16
1 2 3
Court's Ruling
Lacks foundation. The entire Declaration of Ellen Clemente is inadmissible. (page 2 , lines 6-7) Cal. Code of Civ. Proc. Section 2 0 1 5 . 5 (a): This Declaration was not made under penalty of perjury and is therefore inadmissible. Failure to authenticate document. Cal. Evid. Code section 1 4 0 0 - 1 4 0 1 . The declarant does not testify that the attached document is a true, correct a n d / o r complete copy. Relevance, Cal. Evid. Code section 2 1 0 , 3 5 0 . The Exhibit merely states an opinion that Richard Boyd was not an employee of the Franchise Tax Board, and expresses no opinion or statement relating to Mr. Boyd's relationship with SEIU. The declarant offers no admissible evidence to establish how Exhibit A has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action. Sustained: Overruled:
6 7 8 9
10
"O
Paragraph 3 (page 2 , lines 4-6) (Exhibit A)
o
O)
11 12 13 14 15
o
c re E o o u
JC
Paragraph 3 (page 2 , lines 4-6) (Exhibit A)
re
TJ
a > .c u c !5
2=
.E 8 2 5 5J S
Sl
=1
16 17 18 19 20 21 22 23 24 25 26 27 28
Exhibit A
"An FTB EEO officer spoke to Paul Harris. Mr. Harris states the incidents involving Mr. Boyd were fully investigated. He found no merit, but that Mr. Boyd had resigned from his position with SEIU and therefore no further incidents
Hearsay, Cal. Evid. Code section 1200. The declarant is reporting what Harris allegedly said to another FTB EEO officer and states no basis for having personal knowledge o f t h e comments allegedly made.
{1691139.DOC;}
17
1 2 3 4 5 6 7 8 9
10
TJ O
1-
Court's Ruling
should be occurnng. Mr. Harris refused to turn over his investigation matenal to the FTB" on the basis of hearsay."
Averments in a declaration must state that the facts alleged are within the personal knowledge of the affiant and thus not hearsay, and that the affiant can testify competently thereto. House v. Lala, (1960) 180 Cal. App. 2d 4 1 2 , 4 1 6 .
8.
DECLARATION O F MECHELLE SHERLES Defendant's Objection Court's Ruling
11 12 13 14 15 16
The entire Declaration of Mechelle Sherles is inadmissible. (page 1 , lines 21 -25) Hearsay, lacks foundation, Cal. Evid. Code section 1200. This declaration contains no testimony stating that it is made based on the declarant's personal knowledge. Averments in a declaration must state that the facts alleged are within the personal knowledge of the affiant and thus not hearsay, and that the affiant can testify competently thereto. House v. Lala, (1960) 180 Cal. App. 2d 4 1 2 , 4 1 6 . Paragraph 3 Secondary Evidence Rule, Cal. Evid. Code section 1523(a). This form of testimony is not admissible to prove the content of a writing. The declarant seeks to add her personal testimony as to Sustained: Overruled: Sustained: Overruled:
c re E 0) o u
JC TO
Sl
'B o
u c n
=1
2 a 17 c 2 * 18 5J S
19 20 21 22 23 24 25 26 27 28
(page 2, lines 8-19)
{1691139.DOC;}
18
1 2 3 4 5 6 7 8 9 10
a o c re E o u
0) JC
Court's Ruling
the contents of a document which is available to her and which she has attached to her declaration. Paragraph 3 (page 2 , lines 22-24) "My understanding is that when I am performing SEIU duttes, I am treated as an employee of SEIU. I believe Yvonne Walker's statement completely contradicts her testimony in this case regarding my standing as an employee of SEIU." Inadmissible unsupported opinion of declarant. Cal. Evid. Code section 3 1 0 ; Hoover v. Thomson (1985)167 C a l . A p p . 3d 1 1 3 0 , 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant states only her subjective opinion regarding her relationship with SEIU and offers it as a legal conclusion regarding her relationship with SEIU. Relevance, Cal. Evid. Code section 2 1 0 , 3 5 0 . The declarant offers no admissible evidence to establish how this alleged statement has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action. Plaintiff's personal election to treat Boyd as her supervisor is of no consequence, and does not properly result in a determination that Boyd actually was her supervisor. Paragraph 4 Inadmissible unsupported opinion of declarant. Cal. Evid. Code section 31 0; Sustained: Overruled: Sustained: Overruled: Sustained: Overruled:
11 12 13 14 15
re
TJ (U JZ
2 =
o
Paragraph 4 16 17 18 19 20 21 22 23 24 25 (page 3, lines 4-5) "I treated Boyd as my supervisor for purposes of performing my Vice Chair Duties [sic] dunng Bargaining [sic] in 2 0 1 0 . "
=1
% 2 * S J S
26 27 28
(page 3, lines 4-5)
{1691139.DOC;}
19
1 2 3 4 5 6 7 8 9
Court's Ruling
"I treated Boyd as my supervisor for purposes of performing my Vice Chair Duties [sic] during Bargaining [sic] in 2 0 1 0 . "
Hoover v. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant states only her subjective opinion regarding Boyd's position at SEIU and offers it as a legal conclusion.
Paragraph 5
10
T3 O i _ O)
(page 3, lines 8-9) "In July 2 0 1 0 , Boyd asked for my phone number in order to have access to me in the event I was needed for Union duties..."
11 12 13 14 15
o
Lack of foundation, lack of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a). The declarant states no basis for her knowledge as to why Boyd asked for her phone number. This would-be testimony further constitutes improper opinion and irrelevant evidence based on speculation, conjecture and surmise. (People v. Louie (1984) 158 C a l . A p p . 3d Supp. 2 8 , 4 7 ; Evid. Code 800-803.) Lack of foundation, lack of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a). The declarant states no basis for her knowledge that Boyd was provided a suite by SEIU.
c re E 0) o u
TJ U
o c
! Q
2=
16 17 18 19 20 21 22 23 24 25 26 27 28
Paragraph 5 (page 3, lines 15-18) "It was my understanding that Boyd was provided a suite Paragraph 5 (page 3, lines 14) "Boyd was provided a suite by SEIU."
=1
2I
c
2 5 5J S
Lack of foundation, lack of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a).
{1691139.DOC;}
20
1 2 3 4 5 6 7 8 9
10
T5 O O)
Court's Ruling
based on having SEIU agents come to his suite to discuss bargaining during all times as bargaining occurs during offwork hours offen late in the night and early morning."
The declarant states no basis for her knowledge as to how she knows that Boyd was provided a suite by SEIU and for what purposes that suite was provided. Lack of foundation, lack of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a). The declarant states no basis for her knowledge as to whether Boyd was paid by the SEIU for his hotel stay and pier diem. This testimony contradicts Plaintiff's deposition testimony. Local 1000 objects to the purported fact that Boyd pressed against Plaintiff's breasts and upper body as it contradicts Defendant's UDF No. 74 that "Boyd did not hold her head, shoulders or arms or otherwise touch her," which was undisputed by Plaintiff. (See also Sherles Depo., VI. II at 344:4-9.) Local 1000 further objects to the purported fact that Boyd "beat her to the door" and she forced him out of the way as it contradicts Plaintiff's deposition testimony that she reached the door before Boyd did and that she didn't remember how she exited the Sustained: Overruled: Sustained: Overruled:
Paragraph 5 (page 3, lines 9-10) "SEIU was paying for our respective hotel stays and pier
diem."
11 12 13 14 15
o
c re
_fl>
E
o u
JC
re
TJ 0)
Paragraph 6 (page 3, lines 21 - 25) "His body pressed against my breasts and upper body...He beat me to the door and prevented me from leaving. I had to force him out of the way of the door."
.c u
2=
16 17
=1
2I
. E 8 18 2 S * J S
19 20 21 22 23 24 25 26 27 28
{1691139.DOC;}
21
Plaintiff's Evidence 2 3 4 5 6 7 8 9
Court's Ruling
room. (See Sherles Depo., VI. II at 3 3 0 : 2 3 - 2 5 and 3 3 4 : 4 335:22.) A party seeking summary judgment cannot offer a declaration that contradicts the party's deposition testimony. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1 6 0 9 , 1 6 1 3 ; see also D'Amico v. Bd. O f Med'l Examiners (1974) 1 1 Cal.3d 1,22.) Paragraph 7 (page 4 , lines 8-9) "These text messages further illustrated his intentions and his continued aggression despite Plaintiff's lack of consent." Inadmissible unsupported opinion of declarant. Cal. Evid. Code section 3 1 0 ; Hoover v. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , n 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot nse to the dignity of substantial evidence."). The declarant states only her subjective opinion and characterization of the text messages as illustrating Boyd's intentions a n d / o r aggression. Paragraph 9 (page 5, lines 1 -2) This testimony contradicts Plaintiff's deposition testimony. Plaintiff indicated in her deposition she did not know how long it lasted. (See Sherles Depo., VI. II at 2 3 6 : 8 15.) A party seeking summary judgment cannot offer a
10
TJ O
L_
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
O)
c re E o u
JC
re u Sl u
TJ
.a 2 c
o
^1
2 5 5J S
"Mr. Schroader conducted an initial interview for approximately one hour "
{1691139.DOC;}
22
1 2 3 4 5 6 7 8 9 10
TJ O
Court's Ruling
declaration that contradicts the party's deposition testimony. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1 6 0 9 , 1 6 1 3 ; see also D'Amico v. Bd. O f Med'l Examiners (1974) 1 1 Cal.3d 1,22.) Paragraph 9 (page 5, line 25 through page 6, line 1) "Mr. Schroader...was sympathetic and stated that Mr. Boyd as [sic] a 'predator." Thereafter 1 spoke with Yvonne Walker regarding what occurred and she also descnbed Mr. Boyd as a "predator." Paragraph 9 (page 5, lines 1 -2) "Mr. Schroader...was sympathetic" Hearsay, Cal. Evid. Code section 1200. Statements allegedly made by Mr. Schroader and Ms. Walker are statements that were made "other than by a witness while testifying at the hearing and that [are] offered to prove the truth of the matter stated." This testimony is inadmissible. Inadmissible unsupported opinion of declarant. Cal. Evid. Code section 3 1 0 ; Hoover v. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant states only her subjective opinion of the feelings, opinions and beliefs formed by Mr. Schroader during his investigation. Paragraph 1 0 (page 5, lines 5-1 0) This testimony contradicts Plaintiff's deposition testimony. Plaintiff testified deposition that at her halfway Sustained: Overruled: Sustained: Overruled:
11 12 13 14 15
o
c re E a o u
JC TO
.c u c n
B a >
2=
Sl
=1
16 17 18 19 20 21 22 23 24 25 26 27 28
.E 8 2 * 5J S
"This interview lasted over two hours."
{1691139.DOC;}
23
1 2 3 4
Court's Ruling
7 8 9
10
TJ O
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Paragraph 13 (page 6, lines 11-12) "She did this with the intent to cause me distress at a time that I was already vulnerable Paragraph 1 3 (page 6, lines 11-12) "She did this with the intent to cause me distress at a time that I was already vulnerable based on Boyd and Harris' conduct."
c re
E o u
JC
re 'B
(U
c !5 2 c o
through the meeting she began to complain that she needed to use the restroom and approximately 20 minutes elapsed prior to her reaching the restroom door. (See Sherles Depo., VI. IV at 689:9-19.) Based on that testimony, the meeting could not have lasted more than one hour. A party seeking summary judgment cannot offer a declaration that contradicts the party's deposition testimony. (Visueta V. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613; see also D'Amico V. Bd. O f Med'l Examiners (1974) 1 1 Cal.3d 1, 22.) (See Defendant Local 1 OOO's Evidentiary Objecttons at 6 , 1 1 4 . ) Inadmissible unsupported opinion of declarant. Cal. Evid. Code section 3 1 0 ; Hoover v. Thomson (1985)167 C a l . A p p . 3d 1 1 3 0 , 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant states only her subjective feelings regarding Ms. Patterson's motivation. Lack of foundation, lock of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a). The declarant states no basis Sustained: Overruled: Sustained: Overruled:
=1
.= 8 2 * 5J S
{1691139.DOC;}
24
Court's Ruling
2 3 4 5 6
based on Boyd and Harris' conduct." Paragraph 1 3 (page 6, lines 11-12) "She did this with the intent to cause me distress at a time that I was already vulnerable based on Boyd and Harris' conduct."
for her knowledge as to Ms. Patterson's motivation. Inadmissible unsupported opinion of declarant. Cal. Evid. Code section 3 1 0 ; Hoover v. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , 1 1 3 6 - 3 7 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant states only her subjective feelings regarding Ms. Patterson's motivation. Sustained: Overruled:
10
T3
O i_
a> c
TO
11 12 13 14 15
o
E o o u
Paragraph 13 (page 6, lines 12-13) "She is known to be a loyal supporter to the administration and helping in getting Walker re-elected to her office."
'5 (0
S.
JC TO
u
1
2=
16 17 18 19 20 21 22 23 24 25 26 27 28
=1
.E 8
2J 5 5 S
Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Col. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant provides no evidence to support her assertion.
Paragraph 14 (page 6, lines 14-17) "...Defendant Sophia Perkins, a fellow elected official and a part of the Union that in my opinion tends to sympathize with the U n i o n . . . "
Lack of foundation, lack of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a). Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant provides no evidence to support her
{1691139.DOC;}
25
1 2 3
Court's Ruling
assertion. Paragraph 1 4 Hearsay, Cal. Evid. Code section 1200. Statements allegedly made by Mr. Perkins are statements that were made "other than by a witness while testifying at the hearing and that [are] offered to prove the truth of the matter stated." This testimony is inadmissible because it is offered to prove that Ms. Perkins was a " t h u g " and acted toward Sherles in a manner that was consistent with that label. Lack of foundation, lack of personal knowledge and calls for speculation. Cal. Evid. Code section 702(a). Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1 1 3 0 , 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant provides no evidence to support her assertion. Paragraph 15 (page 7, lines 2-3) "My medical records are attached at the confidential declaration of Nilesh Choudhary." Failure to authenticate document. Cal. Evid. Code section 1 4 0 0 - 1 4 0 1 . Neither the declarant nor her counsel have testified that the referenced document is a Sustained: Overruled: Sustained: Overruled:
4 5 6 7 8 9 10
c o \ c
TO
(page 6, lines 17-18) "She often refers to herself as "The Union Thug."
11 12 13 14 15
Paragraph 14 (page 6, lines 20-23) "I believe that this act was in retaliation f o r t h e position I took against the Union in filing the lawsuit."
E o u
(U
JC TO TJ U r" U
c !a
TBtlO
2= 2a 18
01 > 5J S
16 17 18 19 20 21 22 23 24 25 26 27 28
ub
{1691139. DOC;}
26
1 2 3 4 5 6 7 8 9 10
c
TJ O
k_
Court's Ruling
true, correct and/or complete copy, or how it was maintained. Paragraph 16 (page 7, lines 4-9) (entire paragraph) Relevance, Cal. Evid. Code sections 2 1 0 , 3 5 0 . This paragraph contains connection to any of the alleged incidents. Plaintiff's offers no explanation as to how her subjective feelings during an elevator trip which occurred after the events about which she complains is somehow related to those events, or that SEIU somehow orchestrated a traumatic elevator ride. The declarant therefore offers no admissible evidence to establish how this alleged "fact" has any tendency in reason to prove or disprove any fact that is of consequence to the determination of this action. Paragraph 2 0 (Page 7, lines 1 7-20) "The Defendants' conduct...have kept me from attending many Union functions." Inadmissible unsupported opinion of declarant. Hoover V. Thomson (1985)167 Cal. App. 3d 1130, 1136-37 (Opinions standing alone are insufficient and "cannot rise to the dignity of substantial evidence."). The declarant does not even attempt to identify evidence to support her assertion that she was prevented from attending many Union functions. She has identified nothing that would have prevented her from attending such functionsSustained: Overruled: Sustained: Overruled:
11 12 13 14 15
o
O)
c re E o
o u
JC
re
(U Sl
o c '.o
2 =
Sl
.E 8 2 * 5J S
=1
16 17 18 19 20 21 22 23 24 25
26 27 28
{1691139.DOC;}
27
1 2 3 4 5 6 7 8 9 10
TJ O
Respectfully submitted. Dated: October 25, 2013 weintraub tobin chediak coleman grodin LAW CORPORATION
By: Charles Meagan Defendants Service Employees Internattonal Union Local 1000, Rich Boyd and Mono Patterson
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
c re E
0)
o u
JC TO
B o Sl u c n 2 c
Sl
. 8 2 * 5J S
=1
26 27 28
{1691139.DOC;}
28

Local 1000's Objections To Sherles Evidence

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Local 1000's Objections To Sherles Evidence

Uploaded by

Copyright:

Available Formats

ORIGf^fA'

IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

The entire Declaration of Nilesh Choudhary is inadmissible. (page 1, lines 22-24)

16 17 18 19 20 21 22 23 24 25 Paragraph 3 (page 2 , lines 4-8) Paragraph 2 (page 2 , lines 1 -3)

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

SUPPLEMENTAL DECLARATION O F NILESH C H O U D H A R Y Plaintiff's Evidence Defendant's Objection Court's Ruling

Paragraph 2 (page 2 , lines 1 -3)

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Paragraph 3 (page 2 , lines 5-7) (Exhibit 2)

Paragraph 3 (page 2 , lines 5-7) (Exhibit 2)

Hearsay, Cal. section 1200.

Evid. Code Sustained:

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Paragraph 4 (page 2 , lines 8-12)

Paragraph 4 (page 2 , lines 8-12)

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

DECLARATION O F ROBYN SHERLES' Plaintiff's Evidence Defendant's Objection Court's Ruling

The entire Declaration of Robyn Sherles is inadmissible.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Paragraph 3 "...she sustained physical and emotional injuries..."

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

DECLARATION O F JAMES BRIGGS Defendant's Objection Court's Ruling

The entire Declaration of James Briggs is inadmissible.

Paragraph 4 (entire paragraph)

Relevance, Cal. Evid. section 3 5 0 . The declarant's

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Relevance, Cal. Evid. section 3 5 0 .

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

DECLARATION O F SUSY DELLA CASA-MILLS Defendant's Objection Court's Ruling

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

with Robyn Sherles."

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

DECLARATION O F ELLEN CLEMENTE Plaintiff's Evidence Defendant's Objection Court's Ruling

The entire Declaration of Ellen Clemente is inadmissible. (page 1, lines 21 -24)

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Paragraph 3 (page 2 , lines 4-6) (Exhibit A)

Paragraph 3 (page 2 , lines 4-6) (Exhibit A)

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

DECLARATION O F MECHELLE SHERLES Defendant's Objection Court's Ruling

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

"This interview lasted over two hours."

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

Defs' Objections to Plaintiffs' Evidence re MSJ/MSA

You might also like