United States District Court, E.D. California
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
JENNIFER L. THURSTON, Magistrate Judge.
The City of McFarland, California; John Wooner; and Manuel Cantu ("Defendants") seek summary judgment, or in the alternative summary adjudication, on the claims brought by Plaintiff Anita Gonzalez. (Doc. 46.) Plaintiff filed her opposition to the motion on July 25, 2014 (Doc. 47), to which Defendants filed a reply on August 4, 2014 (Doc. 48.) The Court heard the oral arguments of the parties on August 11, 2014.
For the following reasons, Defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
I. Procedural History
Plaintiff initiated this action by filing a complaint against the City of McFarland, California; John Wooner; and Manuel Cantu on January 17, 2013. (Doc. 1.) She filed a First Amended Complaint against Defendants on April 4, 2013. (Doc. 15.) Plaintiff alleged she was employed by the City of McFarland ("the City") beginning in 2003. ( Id. at 1.) She was one of three employees in the City's finance department, and her duties included processing "utility and miscellaneous payments made to the City" as well as Accounts Payable. ( Id. at 2.) Defendants filed a motion to dismiss and a motion to strike on April 18, 2013. (Docs. 16, 17.) The Court granted the motions in part, dismissing Plaintiff's claim for defamation with prejudice and the claim arising under Labor Code §§ 98.6 and 96(k) without prejudice for failure to exhaust administrative remedies. (See Doc. 27 at 23.)
Plaintiff filed her Second Amended Complaint on July 9, 2013. (Doc. 33.) Thereafter, the Labor Code § 224 was implemented, stating "[a]n individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy." In light of this, the Court granted a motion for reconsideration filed by Plaintiff, and reinstated her claim arising under Labor Code §§ 98.6 and 96(k) on January 24, 2014. (Doc. 45.) Accordingly, Plaintiff's claims include: (1) a violation of the First Amendment under 42 U.S.C. § 1983 by Wooner; (2) a violation of 42 U.S.C. § 1983 by the City; (3) discrimination, discharge, or refusal to hire for exercise of employee rights in violation of Cal. Labor Code 98.6 and 96(k) by the City; (4) violation of California Civil Code § 52.1; and (5) defamation by Cantu and the City. (See Docs. 15, 45.)
II. Legal Standards for Summary Judgment
The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial summary judgment, when there is no genuine issue of material fact as to a particular claim or portion of that claim. Fed.R.Civ.P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) ("Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim...") (internal quotation marks and citation omitted). The standards that apply on a motion for summary judgment and a motion for summary adjudication are the same. See Fed.R.Civ.P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200 (S.D. Cal. 1998).
Summary judgment, or summary adjudication, should be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication is appropriate by "informing the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)).
If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586 n.11; Fed.R.Civ.P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.
The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed "in the light most favorable to the nonmoving party" and "all justifiable inferences" must be drawn in favor of the nonmoving party. Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
III. Evidentiary Objections
Plaintiff and Defendants object to statements filed by the opposing party for lack of personal knowledge and hearsay. Rule 602 provides a witness may not testify unless "the witness has personal knowledge of the matter." Fed.R.Evid. 602. A lay witness may testify only as to those opinions or inferences that are "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. Applying these standards, the Court addresses the evidentiary objections as follows.
A. Plaintiff's objections
1. Manuel Cantu Declaration, Paragraph 3
Plaintiff objects to references to the city audit in the declaration of Manuel Cantu. (Doc. 47-30 at 1.) Cantu asserted: "In 2011, the City of McFarland had an audit conducted that recommended raising the qualifications of employees in the Finance Department. I reviewed the Auditor's Report." (Doc. 46-4 at 199, Cantu Decl. ¶ 3.)
Plaintiff argues that this statement contains hearsay and is not the best evidence, in violation of Fed.R.Evid. 1002. (Doc. 47-30 at 1-2.) Specifically, Rule 1002 provides that "[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provide otherwise." The City has not produced the Auditor's Report, and the statements in Cantu's declaration are used to "prove the content of a writing"-namely, that the audit included a recommendation to raise the qualifications of Finance Department employees. Such a use violates the best evidence rule. See e.g. Medina v. Multaler, Inc., 547 F.Supp.2d 1099, 1114 n.57 (C.D. Cal. 2007) (an employee's declaration was inadmissible under the best evidence rule where she stated that her supervisor sent emails to make her look bad, because she did not produce the emails and her testimony was offered to prove the content of the writings in question).
Likewise, Cantu's statements purporting to provide the information contained in the audit is hearsay and there is no showing that an applicable exception applies. Accordingly, the objections to Paragraph 3 of Cantu's declaration are SUSTAINED.
2. Rocio Mosqueda Declaration, Paragraph 2
Plaintiff also objects to references to the audit in the declaration of Rosio Mosqueda, who asserts that "[t]he auditor pointed out to [her] that there were several errors in the City's billing and coding." (Doc. 46-4 at 195, Mosqueda ¶ 2.) Plaintiff objects that this statement contains hearsay and is not the best evidence of the audit, similar to the Cantu declaration. However, Mosqueda does not expressly refer to the content of the written Auditor's Report. Nevertheless, Mosqueda's statement contains hearsay, because it is used to prove the truth of the matter asserted: that there were errors in the City's billing and coding. See Fed.R.Evid. 801. Plaintiff's objection to Paragraph 2 of Mosqueda's Declaration, on the grounds that it contains hearsay, is SUSTAINED.
3. John Wooner Declaration, Paragraphs 19-20
Plaintiff objects to the potions of John Wooner's declaration in which he "indicat[es] he would have terminated Plaintiff for making recordings of discussions." (Doc. 47-30 at 2.) Plaintiff argues, "This testimony violates Rule 26(a)(1)(A)(i) as it was never disclosed." ( Id. )
In response, Defendants note that discovery deadline was on March 3, 2014, yet they "were unable to verify that Plaintiff secretly recorded the June 21, 2012 and July 26, 2012 meetings until her deposition on April 14, 2014. (Doc. 48 at 23, 24.) Defendants assert that "Wooner's deposition occurred two days after Plaintiff's deposition, " and Plaintiff had the opportunity to "ask Wooner in his deposition what he would have done if he knew." ( Id. at 24.)
The Federal Rules of Civil Procedures require a party to provide "the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1)(A)(i). Under Rule 37, "[i]f party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37.
To determine whether the untimely disclosure was harmless, a court may consider: "(1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure that prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence." Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed.App'x. 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)); see also Woodworker's Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). Importantly, Wooner is a defendant in this action, and as such it is no surprise to Plaintiff that he offered testimony in the action. Further, Plaintiff cannot plausibly argue any surprise at his declaration in light of the fact Plaintiff had an opportunity to question Wooner regarding the recordings during his deposition. Finally, there is no showing that Defendants acted with bad faith in not disclosing this information. In light of these facts, Plaintiff's objection to Paragraphs 19-20 of Wooner's declaration is OVERRULED.
B. Defendants' Objections
1. Declaration of Anita Gonzalez
a. Paragraph 8: "[Wooner] stated that the City's financial situation was good and there would be no layoffs in the future."
Paragraph 15: "This shocked me because he had told us on Apri12, 2012 that the city's finances were good and there would be no layoffs."
Defendants object to these statements, asserting they are hearsay. (Doc. 48-1 at 1-2, citing Fed.R.Evid. 802.) However, an opposing party's statement offered against that party is not considered hearsay. Fed.R.Evid. 801(d)(2)(A). Similarly, statements offered against a party that were made by the party's agent or employee on a topic that is within the scope of the employment relationship, are excluded from the hearsay rule. Fed.R.Evid. 801(d)(2)(D). Wooner is a defendant, and the statements related to the City's financial situation were within the scope of his employment with the City. Thus, Defendants' objections are OVERRULED.
b. Paragraph 13: "Mr. Wooner said he received a telephone call from a prominent resident' of the City of McFarland who had informed him that the three of us had been badmouthing the City at Pioneer Restaurant the day before." "[Wooner] told us that we were receiving written reprimands he had approved."
Defendants object to these statements, asserting they are hearsay. (Doc. 48-1 at 2, citing Fed.R.Evid. 802; Medina v. Multaler, Inc., 547 F.Supp.2d 1099 (C.D. Cal. 2007)). Again, an opposing party's statement offered against that party is not considered hearsay. Fed.R.Evid. 801(d)(2)(A). Defendants' objections are OVERRULED.
c. Paragraph 14: "The only person in the restaurant who fit the description of a prominent resident during the Pioneer discussion was the owner, Milton Mar." "I assumed (and still believe) it was Mr. Mar who told Mr. Wooner about what was discussed at the restaurant."
Defendants assert these statements lack foundation and are speculative. (Doc. 48-1 at 2.) Plaintiff speculates that Mar was the person to whom Wooner referred without having a basis upon which to make this conclusion. Though she may believe based upon her own definition of the phrase that Milton Mar was the person to whom Wooner referred, but she cannot know if, indeed, this was the correct person. Indeed, in her declaration, Plaintiff admits that it this is her assumption. (Doc. 47-1 at 6) Thus, Defendants' objections are SUSTAINED.
d. Paragraph 16: "Prior to that meeting, my husband had been telling me to record meetings at the city (after the April 27, 2012 reprimand)."
Defendants argue this statement is hearsay. (Doc. 48-1 at 2.) However, it appears the statement is offered to explain her subsequent action rather than as proof that her husband told her to take this action. Thus, Defendants' objection is OVERRULED.
e. Paragraph 16: "I was not sure how to record anything and was unaware recording any discussion was illegal."
Paragraph 17: "Not knowing such recording is illegal, I recorded the discussion on my phone so I could then let my husband hear it without being subjected to lengthy and numerous questions by him as to what was said."
Defendants object that Plaintiff's knowledge of the law governing recordings is irrelevant. (Doc. 48-1 at 2-3, citing Fed.R.Evid. 402; US. v. Int'l Minerals & Chem. Corp., 402 US. 558, 564 (1971)). The statements explain why Plaintiff made the recording and they bear some relevance to the reasonableness of Defendants' argument that she would have been fired had Wooner been aware of the recording at the time. Thus, the objections are OVERRULED.
f. Paragraph 16: "During discovery, defendants produced a similar recording of that meeting."
Defendants object that Plaintiff's statement lacks foundation. (Doc. 48-1 at 3, citing Fed.R.Evid. 602.) However, Plaintiff is a party to this litigation and this provides her a sufficient basis to know what discovery Defendants provided. Defendants' objection is OVERRULED.
g. Paragraph 16: "There was at least one member of the public present who was not an employee of the City."
Defendants argue that Plaintiff's statement lacks foundation. (Doc. 48-1 at 3, citing Fed.R.Evid. 602.) Though Plaintiff is a City employee, she fails to describe the size of the meeting such that it is a reasonable inference that she could distinguish between employees and members of the public. Moreover, she fails to explain why she believed the person to whom she refers was not employed by the City. Thus, Defendants' objection is SUSTAINED.
h. Paragraph 17: statements made by John Wooner during the conversation taped by Plaintiff on July 26, 2014.
Defendants object to statements in Paragraph 17, asserting the statements are hearsay and lack foundation. However, the statements were made by John Wooner, a defendant in this action, in the course of a conversation with Plaintiff. Therefore, Defendants' objections to the evidence, on these grounds, are OVERRULED.
In addition, Defendants object to statements in Paragraph 17 of Plaintiff's declaration because the statements were "clearly transcribed from Plaintiff's illegal recording of her confidential conversation with John Wooner on July 26, 2012." (Doc. 48-1 at 3-6.) Plaintiff admits recording the conversation without Wooner's permission. (Doc. 47-1 at 7, Gonzalez Decl. ¶ 17.) Defendants argue that the transcribed statements should not be considered by the Court, because that under Cal. Pen. Code § 632(d), "no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of [Section 632] shall be admissible in any judicial... proceeding." ( Id. )
Significantly, the Ninth Circuit has determined that recorded evidence obtained in violation of California law "is admissible in federal court proceedings when obtained in conformance with federal law and without regard to state law." Roberts v. Americable Int'l, 883 F.Supp. 499, 503 (E.D. Cal. 1995) (citing United States v. Adams, 694 F.2d 200, 201-02 (9th Cir. 1982). Thus, the Court must determine whether the evidence is a violation of the Omnibus Crime Control and Safe Streets Act. See id; 18 U.S.C. § 2510, et seq.
The Omnibus Crime Control and Safe Streets Act "prohibits the intentional interception of any oral communication where the parties have a reasonable expectation of privacy and the circumstances justify such an expectation." Roberts, 883 F.Supp. at 503 (citing 18 U.S.C. § 2511; Matter of John Doe Trader Number One, 894 F.2d 240 (7th Cir. 1990)). Interception includes "the use of any electronic, mechanical, or other device" to record a communication. 18 U.S.C. § 2150(4). However, "the interception of oral communications is not unlawful... where a party to the conversation is either the one who has intercepted the conversation or who has consented to the interception, and the interception is not for the purpose of committing any criminal or tortious act." Roberts, 883 F.3d at 503 (citing 18 U.S.C. § 2511(2)(d); Thomas v. Pearl, 998 F.2d 447 (7th Cir. 1993)).
Here, it is undisputed that Plaintiff was a party to the recorded conversation. There is no evidence that the interception was "for the purpose of committing any criminal or tortious act." The Ninth Circuit has permitted the admission of such communications where the recordings were legally made under federal law - despite the fact that the recordings may have been illegal under state law. See Adams, 694 F.2d at 201 ("We need not reach the issue of the legality of the interceptions and recordings under [state] law, for this circuit has established a clear and simple rule that evidence obtained from a consensual wiretap conforming to 18 U.S.C. § 2511(2) (c) is admissible in federal court proceedings without regard to state law.") Because the recording was not illegal under federal law, Defendants' objections to the transcribed statements are OVERRULED.
i. Paragraph 20: "I was advised that on the last day available for me to sign the release, Mr. Wooner was very concerned as to whether I would sign it or not."
Defendants object that the statement lacks foundation and is hearsay. (Doc. 48-1 at 6.) Because Plaintiff has not explained how she learned Wooner was concerned and she appears to be relaying only what someone else told her, the objection is SUSTAINED.
j. Paragraph 21: "[Puentes] told me about a discussion she had with Mayor Cantu about the reorganization. I asked her to prepare a written statement concerning the discussion, and she did."
Defendants assert this statement is inadmissible hearsay. (Doc. 48-1 at 6.) However, Plaintiff does not report any contents of the conversation or discuss the contents of the written statement. Thus, the statements are not hearsay and Defendants' objection to the statement is OVERRULED.
2. Declaration of Sylvia Escalante
a. Paragraph 5: "We were told by Mr. Wooner he had received a phone call from a prominent McFarland resident that we had been badmouthing the City during our discussion at the Pioneer the day before. He said he did not care what we had to say because he trusted his source'. We were not allowed to tell him what had been said. Mr. Wooner never identified who his source was. Mr. Wooner told all three of us that if it were up to him he would terminate us."
Paragraph 7: "Mr. Wooner informed us at that meeting that the City was doing fine financially and there were no plans for layoffs."
Defendants object to these statements as hearsay. (Doc. 48-1 at 6.) Because the statements identified were made by defendant Wooner, and are offered against Defendants, they are not hearsay. Fed.R.Evid. 801(d)(2)(A). Similarly, the statement related to the City's financial situation is not hearsay, because it was a matter within the scope of Wooner's employment ...