Blake Smith v. Pacific Bell Telephone Company, Inc. et al, No. 1:2006cv01756 - Document 151 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION RE Defendants Pacific Bell, Shane Spencer, and Alan Brown's Motion for Summary Judgment 49 and Motion to Strike 106 , signed by Judge Oliver W. Wanger on 8/11/09: Pacific Bell's, Shane Spencer's, and Alan Brown's motion to strike is GRANTED and motion for summary judgment is GRANTED as to Plaintiff's third and sixth causes of action; Defendants shall comply with this order within five (5) days of electronic service. (Hellings, J)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 BLAKE SMITH, No. CV-F-06-1756 OWW/DLB 6 Plaintiff, 7 8 MEMORANDUM DECISION RE DEFENDANTS PACIFIC BELL, SHANE SPENCER, AND ALAN BROWN S MOTION FOR SUMMARY JUDGMENT (Doc. 49) AND MOTION TO STRIKE (Doc. 106) v. PACIFIC BELL TELEPHONE COMPANY, INC., et al., 9 Defendant. 10 11 I. INTRODUCTION. 12 Plaintiff brings this action pursuant to § 301 of the Labor- 13 Management Relations Act, 29 U.S.C. § 185, claiming that his 14 employer, defendant Pacific Bell, Inc. ( Pacific Bell ), terminated 15 his employment in violation of the collective bargaining agreement 16 between Pacific Bell and Plaintiff s union, defendants District 9 17 and Local 9333 of the Communications Workers of America, AFL-CIO 18 ( CWA or Union ). Plaintiff also alleges that the Union breached 19 its 20 investigation and refusing to take his grievance to arbitration. 21 Plaintiff also brings attendant state law claims for fraud and 22 defamation. duty of fair representation by conducting a perfunctory 23 On December 6, 2006, Plaintiff filed a Complaint for Wrongful 24 Termination against Defendants Pacific Bell; AT&T Communications of 25 California, Inc.;1 SBC Telecom, Inc.; Shane Spencer; Alan Brown; 26 Communications Workers of America Local 9333 Union AFL-CIO ( Local 27 28 1 AT&T Communications of California, Inc. and SBC Telecom, Inc. were dismissed pursuant to stipulation (F.R.C.P. 41(a)) on February 1, 2008. (Doc. 62.) 1 9333" or Local Union ); and Communications Workers of America 2 District 9 Union AFL-CIO ( District 9").2 3 Action 4 against all Defendants; the Fourth Cause of Action alleges fraud 5 against the Union Defendants; the Fifth Cause of Action alleges 6 breach of the duty of fair representation against Local 9333 and 7 District 9; and the Sixth Cause of Action alleges defamation by 8 slander against all Defendants. alleges breach of the Collective The Third Cause of Bargaining Agreement 9 Before the court for decision is the motion for summary 10 judgment filed by Defendants Pacific Bell, Shane Spencer, and Alan 11 Brown.3 12 13 II. FACTUAL BACKGROUND.4 In October 2005, Plaintiff worked as a cable locator for 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 The First and Second Causes of Action for breach of the implied covenant of good faith and fair dealing were dismissed with prejudice as preempted by L.M.R.A. § 301 by Order filed on April 13, 2007. (Doc. 29.) 3 The motions for summary judgment filed by Defendants Local 9333 and District 9 are resolved by separate Memorandum Decision. 4 Unless otherwise noted, the facts herein are undisputed. (See Stmt. of Undisp. Facts in Support of Def. s Mot. for Summ. J. ( SUF ), filed by Defendants Pacific Bell, Adam Brown, and Shane Spencer on Dec. 28, 2007). Plaintiff filed a single Statement of Disputed Facts in response to each of the pending motions for summary judgment. Plaintiff objects to much of the evidence submitted by defendants on various grounds. Virtually all of Plaintiff s objections are without merit. Further, to the extent that Plaintiff s sole dispute with facts is based upon the inadmissability of Defendants evidence, and is not challenged by any admissible evidence submitted by Plaintiff, the court will view these facts as undisputed. 28 2 1 Pacific Bell, a regional telephone company providing telephone and 2 data 3 telecommunications 4 Pacific Bell and the Union are parties to a collective bargaining 5 agreement 6 terminated for good cause. 7 mandatory grievance clause and provides for final and binding 8 arbitration. 9 was the exclusive bargaining agent for a bargaining unit of Pacific 10 11 transmission ( CBA ) services to infrastructure which (SUF 4.) states retail and that (SUF 3.) consumers over (SUF facilities. employees can its 1.) only be The CBA also contains a Plaintiff was a member of the Union, who Bell employees that included Plaintiff. (SUF 2.) Under the CBA, the Union may file a grievance based on any 12 alleged violation of the CBA. (Dec of D. Flores ¶ 4.) A grievance 13 may be addressed at three stages ( Step 1 through Step 3"), with 14 each step involving a more senior company and union official.5 15 (Id.) 16 appeal the Company s decision to a neutral arbitrator. 17 decision whether to take an unresolved grievance to arbitration is 18 made at the district level. 19 moved to the district level, the local union does not have any 20 continuing obligation regarding the investigation, handling or 21 processing of the grievance. If the grievance is not resolved at Step 3, the Union may (Id. ¶ 6.) (Id.) The After the matter has been (Id. ¶ 7.) 22 Pacific Bell vehicles are generally equipped with a Vehicle 23 Tracking Unit ( VTS ), which directly links to Global Positioning 24 Satellites ( GPS ). (SUF 13.) Pacific Bell equipped Plaintiff s 25 5 26 27 28 Under CWA s grievance handling procedures, the local union is responsible for the preliminary investigation and the filing of a grievance. (Dec. of L. Sayre ¶ 5.) The local union is also responsible for participation in the first, second, and, if applicable, third steps of the grievance process. (Id.) 3 1 work vehicle with GPS several years prior to the events at issue in 2 this case. 3 vehicle contained a GPS monitoring device on October 17, 2005. 4 (Pl. s Dep. 102:18-102:20.) 5 (SUF 14.) It is undisputed that Plaintiff knew his Pacific Bell s use of GPS data for disciplinary purposes is 6 authorized by the CBA. (Dec. of G. Flores ¶ 3.) 7 Union expressed concerns about Pacific Bell s use of GPS data for 8 employee discipline. 9 data not be used at all. (Id. at ¶ 8-9.) (Id.) In 2004, the The Union proposed that GPS Pacific Bell rejected this and 10 proposed that the parameters be spelled out in an enforceable side- 11 letter agreement. 12 Union entered into a side letter agreement: 13 14 15 16 17 (Id.) On July 12, 2004, Pacific Bell and the GPS is one of many management tools used to review employee performance or behaviors. GPS will not be used as the sole basis for disciplinary action, but may be used to substantiate information obtained from other sources. As in all cases where discipline may be warranted, management will conduct a complete and thorough investigation and may utilize GPS reports as an additional tool in the investigation. 18 (Exh. B to Dec. of D. Flores.) 19 Pacific Bell uses GPS reports for a variety of reasons, such 20 as ensuring that employees are working at assigned locations at 21 particular times or to ensure that vehicles are being operated 22 safely within the speed limits. (Dec. of G. Flores ¶ 8.) The 23 reports generated by the GPS system report the following data: (a) 24 the time and location of the vehicle every time the ignition is 25 turned on and off; (b) the time and location of the vehicle every 26 seven minutes; (c) the time and location of the vehicle every one 27 mile driven; and (d) the time and location of the vehicle the first 28 4 1 time it reaches 20 mph after the ignition is initially turned on. 2 (SUF 13.) 3 According to Steve Larson, Manager of Vehicle Tracking 4 Services since March 2001, GPS units attached to Plaintiff s 5 vehicle on October 17, 2005 are extremely accurate. 6 ¶ 1,5.) 7 problems, those instances are rare. 8 GPS unit is not functioning properly, the report will indicate a 9 problem. (Larson Dec. Although there are time that the system has experienced (Id.) According on Larson, October 17, the 2005 GPS did If the records Plaintiff s 11 malfunction or error. 12 that there was no record of service request concerning Plaintiff s 13 GPS unit in October 2005. (Larson Dec. ¶ 4, 10.) not from 10 14 vehicle to (Larson Dec. ¶ 5.) indicate a Larson also stated (Larson Dec. ¶ 10.) On October 17, 2005, Plaintiff s company vehicle was stolen 15 while he was locating cable in Keyes, California. (SUF 6.) At 16 around 1:00 p.m., Plaintiff maintains he parked his vehicle, 17 removed the keys from the ignition, locked the van, and proceeded 18 to the rear of the van to remove his locating wand. 19 of A. Brown ¶¶ 8-9.) 20 away from his company vehicle. 21 requiring locking company vehicles and Plaintiff was aware of this 22 company rule. 23 was also equipped with GPS equipment. (SUF 6; Dec. Plaintiff then began walking to the worksite, (Id.) Pacific Bell had a rule (SUF 43; Pl. s Dep. 35:3-35:10.) Plaintiff s van (SUF 14.) 24 According to Plaintiff, sometime after 1:00 p.m., he was cable 25 locating approximately 150 feet away when he saw a bicyclist 26 approach 27 something up off of the ground and enter the cabin of his vehicle. 28 The his bicyclist vehicle. then Plaintiff proceeded to 5 noticed drive the off in bicyclist the pick vehicle. 1 Plaintiff immediately moved toward the van and dialed 911.6 2 7.) After concluding the short pursuit and the 911 call, Plaintiff 3 phoned his supervisor, Alan Brown.7 4 (SUF (SUF 8.) Plaintiff s stolen vehicle was located approximately 20-30 5 minutes later.8 6 the theft location (Nunes and Washington Streets), drove Plaintiff 7 to the location of his recovered work vehicle (Nora Avenue and 8 Ninth Street). 9 Mastrangelo ( Mastrangelo ) and Brown were at the location of the (SUF 10.) A CHP officer, who had arrived at the (Pl. s Dep. 82:1-82:9.) Local Shop steward John 10 recovered vehicle when Plaintiff and the officer arrived.9 11 Dep. 83:1-83:4, 86:15-86:22.) 12 missing the company laptop, miscellaneous tools, and change from 13 the ashtray. (Pl. s Upon inspection, the vehicle was (SUF No. 10.) 14 15 16 17 18 19 20 21 22 6 The California Highway Patrol s Report concerning the incident states: On October 17, 2005, at approximately 1310 hours, I was advised of a victim standing by for a report to be taken on a stolen vehicle that was taken while he was doing cable repairs on Nunes Road and Washington Avenue. (Doc. 50-7, Ex. A, pp. 13.) 7 Brown s cellular phone records indicate an incoming call from Plaintiff s phone at 1:12 p.m. on October 17, 2005. (Doc. 5011, Ex. B, pp. 6.). Brown was Plaintiff s first level supervisor from February 2005 through November 2005. (Dec. of S. Spencer ¶¶ 12.) Shane Spencer ( Spencer ) was Plaintiff s second level supervisor from March 2003 through November 2005. (Id.) Before Brown, Plaintiff s first level supervisor was Todd Bayes ( Bayes ). Both Bayes and Brown reported directly to Spencer. (Id.) 23 8 24 25 26 27 28 Stanislaus County Sheriff s Incident Report states: On 1017-05 at approximately 13:15 hours: Detective Mendonca from the Sheriff s Department came on the radio saying he was in the Keyes area and had spotted a stolen SBC , telephone repair van being operated on 9th street in Keyes. (Doc. 50-7, Ex. A, pp. 10.) 9 Following the theft, Brown also contacted Spencer and Asset Protection, the corporate security investigation department for Pacific Bell. (Dec. of M. Ferrara ¶ 3.) 6 1 On October 18, 2005, Plaintiff attended an investigatory 2 meeting concerning the theft of his work vehicle.10 3 Plaintiff, 4 representative 5 Plaintiff that GPS data from the van showed that it had been idling 6 at the time of the theft. 7 opportunity to explain his side of the story. 8 denied leaving the keys in the vehicle while it was running and 9 stated that the keys must have fallen off his keychain when he was Mastrangelo, attended Brown, the and meeting. (SUF 15, 19.) another (SUF (SUF 16.) Pacific 16.) Brown Bell told Plaintiff was given an (SUF 18.) (SUF 17.) Plaintiff 10 locking the vehicle s rear doors. At the conclusion of 11 the meeting, Plaintiff was suspended pending further investigation. 12 (SUF 18.) 13 On November 1, 2005, during his suspension, Plaintiff was 14 asked to meet with an investigator from the Pacific Bell s Asset 15 Protection Division. 16 denied he left the vehicle idling and could not explain why the GPS 17 report said otherwise. 18 keys from the ignition and must have dropped them when removing 19 equipment from the vehicle s rear doors. (SUF 21.) During this meeting, Plaintiff (SUF 22.) He repeated that he removed the (SUF 22.) 20 On November 2, 2005, Brown conducted a test of Plaintiff s 21 vehicle to ensure the GPS unit functioned properly. (Dec. of A. 22 23 24 25 26 27 28 10 Prior to the meeting with Plaintiff, Brown contacted Steve Larson ( Larson ), who handles vehicle tracking services ( VTS ) for Pacific Bell. (Dec. of A. Brown ¶ 11.) Brown asked Larson to pull the October 17, 2005 vehicle activity report for Plaintiff s vehicle. (Id.) Larson transmitted the vehicle s daily log to Brown and Spencer, who discussed the significance of the GPS coordinates. (Id.) Because the GPS data indicated that the Plaintiff s vehicle was idling during at the time of the theft, Brown called Plaintiff into a meeting later that day. (Id.) 7 1 Brown ¶ 15.) Brown made four stops at specific addresses near 2 where Plaintiff s vehicle was stolen. 3 the vehicle along Plaintiff s route. 4 vehicle to the garage, Brown had Larson pull the vehicle s GPS 5 report. 6 functioning properly as all the starts, stops, and times matched 7 Brown s contemporaneous notes of his movements earlier that day. 8 (Id.) 9 Protection. (Id.) (Id.) Brown also restarted (Id.) After returning the The report confirmed that the GPS unit was Brown sent a summary of his findings to Spencer and Asset (Id.) 10 On November 18, 2005, Brown, Spencer, Ellen Singleton (Labor 11 Relations), and Roger Odom (Human Resources), met to discuss the 12 investigation, 13 disposition. 14 determined that the evidence demonstrated that Plaintiff s vehicle 15 was idling when it was stolen, which meant the keys were in the 16 ignition and that Plaintiff s report of the facts was false. 17 25.) 18 safeguarding company property and misrepresenting facts during the 19 investigation, i.e., that Plaintiff lied. (SUF 25.) Asset (Dec. Protection s of A. Brown findings, ¶ 16.) and Brown Plaintiff s and Spencer (SUF Spencer and Brown decided to terminate Plaintiff for not 20 On November 22, 2005, Plaintiff attended a meeting with 21 Mastrangelo, Johnson, Brown, Spencer, union representative Virginia 22 Santos, and cable repair manager Warren Anderson. (SUF 26.) Brown 23 conducted 24 terminated. 25 determined that Plaintiff violated the Company s Code of Business 26 Conduct by failing to safeguard company property and that he 27 misrepresented facts during the investigation. 28 his employment, Plaintiff had been disciplined for violations of the meeting (SUF 26.) and informed Brown 8 stated Plaintiff that the that he was investigation (SUF 26.) During 1 Pacific Bell Policy and was advised, on at least four occasions, 2 that any further incidents could lead to termination. (SUF 5.) 3 On November 23, 2005, during a staff meeting, a service 4 technician asked Brown several questions concerning Plaintiff s 5 termination.11 6 that 7 investigation. (SUF 51.) Plaintiff also claims to have overheard 8 Spencer tell Brown that he thought Plaintiff was lying about what 9 happened on October 17, 2005 and he would use GPS to prove it. 10 (SUF 50.) Plaintiff was According to Plaintiff, Brown responded terminated because of lying during an (SUF 53.) 11 Following Plaintiff s discharge, the Union filed a grievance 12 on his behalf. 13 for Plaintiff s dismissal was the GPS report, which was in direct 14 violation of the CBA and agreement governing Pacific Bell s use of 15 GPS records. 16 Flores.) 17 dismissal and maintained that Plaintiff s explanation regarding the 18 theft 19 disciplinary incidents, the most serious of which resulted in the 20 warning that he could be terminated if another incident occurred. 21 The union requested that Plaintiff be reinstated to his position at 22 Pacific Bell and made whole in all other respects. 23 Exh. D, Dec. of D. Flores.) 24 25 was (SUF 27.) The union asserted that the sole reason (Exh. H, Dec. of L. Johnson; Exh. C, Dec. of D. Pacific Bell denied that GPS was the sole reason for his not plausible. (Id.) Plaintiff had three prior (SUF No. 46; A Step 1 grievance meeting was held on December 7, 2005. (SUF 28.) Brown, representing Pacific Bell, and Johnson, representing 26 11 27 Only Pacific Bell employees attended the staff meeting. (SUF 52.) 28 9 1 Local 9333, attended the Step 1 meeting, at which time Johnson 2 demanded that Plaintiff be reinstated. 3 Brown refused Johnson s request to reinstate Plaintiff and denied 4 the grievance. 5 all of the documentation she requested, including copies of the 6 asset protection report, interview notes, the GPS report, and the 7 Stanislaus County Sheriff s report. 8 9 (Id.) (Dec. of Brown ¶ 16.) Brown also confirmed that Johnson received (Doc. 50-4, Exh. F, pp. 18.) A Step 2 grievance meeting was held on January 5, 2006. 29.) (SUF Larry Gordon, Juan Saralegui, John Mastrangelo, and Lynn 10 Johnson attended on behalf of the Union. 11 17.) Spencer and Tony Kobliska attended on behalf of Pacific Bell. 12 (Id.) 13 Plaintiff s 14 requested that Plaintiff be reinstated to his full-time position. 15 (Doc. 53, Exh. E, pp. 35.). 16 terminated instead of suspended for 30/60 days. 17 that Plaintiff was terminated because of his inherent risk to the 18 business. 19 denied the grievance. 20 (Dec. of S. Spencer ¶ According to the minutes of the meeting, the group reviewed grievance (Id.) and Local 9333 representatives again Lynn Johnson asked why Plaintiff was Kobliska stated Pacific Bell refused to reinstate Plaintiff and (Id.) A Step 3 grievance meeting was held on February 16, 2006. 21 (SUF 30.) Larry Gordon and Lynn Johnson attended on behalf of the 22 Union. 23 Berringer attended on behalf of Pacific Bell. 24 again asserted that Plaintiff was dismissed solely because of the 25 GPS report, contrary to the side-letter agreement. (Id.) (Dec. of D. Flores ¶ 11.12) Murchison, Kubliska, and John (Id.) Local 9333 Although 26 27 12 28 See Step 3 Meeting Notes, Doc. 50-10, Exh. C to Dec. of D. Flores. 10 1 Pacific Bell admitted that it used GPS heavily on this, it 2 asserted that his termination was based on the vehicle being 3 stolen. 4 explanation regarding the theft was not plausible, i.e, that 5 Plaintiff lied. 6 to reinstate Plaintiff and denied the grievance. (Id.) Pacific (Id.) Bell maintained that Plaintiff s Pacific Bell refused Local 9333 s request (Id.) 7 On March 9, 2006, District 9 notified the company of its 8 intent to arbitrate Plaintiff s grievance under Sections 7.10C, 9 7.10D, 7.11D, and 7.15 of the CBA. (SUF 32.) District 9 10 maintained that the termination was not justified and requested 11 that Plaintiff be reinstated, that the company remove all the 12 documentation concerning the incident, and that Plaintiff be made 13 whole in every respect. 14 (Dec. of D. Flores ¶ 11.) Plaintiff s arbitration was set for September 27, 2006. Prior 15 to the arbitration, 16 Plaintiff s 17 manuals, 18 employees disciplined after reviewing GPS records. personnel GPS-related the Union records, and as documents, Pacific well and as Bell exchanged numerous operating information about other (SUF 33-34.) 19 After a meeting between Plaintiff and the Union s attorney, 20 Mr. Rosenfeld on September 25, 2006, District 9 formally withdrew 21 Plaintiff s grievance. 22 counsel, Rosenfeld stated that District 9 decided not to pursue the 23 grievance any further because after reviewing the evidence, we 24 determined that we could not prevail. 25 In a letter to Pacific Bell s arbitration (SUF 36-37.) III. PROCEDURAL BACKGROUND. 26 On December 6, 2006, Plaintiff filed a complaint for wrongful 27 termination against Pacific Bell, AT&T, SBC Telecom, Inc., Spencer, 28 Brown, the Local Union, and District 9. 11 (Doc. 2.) Count III 1 alleges that Pacific Bell breached the CBA by terminating 2 Plaintiff s employment without good cause. 3 Plaintiff alleges that the union breached the CBA by failing to 4 protect his employment following his suspension and discharge. Also under Count III, 5 Count IV alleges that the union defendants committed fraud 6 when they deceived Plaintiff into making monthly dues payments with 7 full knowledge that they would not fulfill their promise to protect 8 his interests. 9 their duty of fair representation by performing a perfunctory 10 investigation and arbitrarily failing to pursue his claim to 11 arbitration. 12 blacklisting, arising out of the defendants allegedly telling 13 Pacific Bell employees that Plaintiff was discharged for lying. 14 Plaintiff 15 impossible for him to acquire employment in Stanislaus County. Count V alleges that the union defendants breached Count VI recites state law claims for libel and alleges that these false statements have made it 16 Defendants Pacific Bell, Shane Spencer, and Alan Brown filed 17 their motion for summary judgment on December 28, 2007. (Doc. 49.) 18 With their motion, Defendants filed a Statement of Undisputed 19 Facts. 20 Plaintiff cannot demonstrate that the union defendants breached the 21 duty of fair representation - a prerequisite to finding Pacific 22 Bell breached the CBA. 23 should be dismissed because: 1) the statements were privileged 24 under Cal. Civ. Code § 47; 2) Plaintiff s claim is preempted by § 25 301 of the LMRA; and 3) the allegedly defamatory statements are not 26 actionable as they are true. 27 28 (Doc. 50-1.) Defendants Defendants seek judgment on the grounds that motion Defendants also argue the state law claim for hearing on January 28, 2007. summary judgment was noticed for By Stipulation and Order filed on 12 1 January 22, 2008, (Doc. 59), the hearing on the motions for summary 2 judgment was continued to March 17, 2008. 3 Plaintiff filed his opposition to Defendants summary judgment 4 motion on February 29, 2009. (Doc. 71.) 5 opposition, Plaintiff submitted: (1) a single Memorandum opposing 6 all 7 Mastrangelo; (3) the affidavit of Michael Caloyannides, PhD; and 8 (4) a single Statement of Disputed Facts ( PSDF ). 9 Plaintiff did not file an opposition to Defendants statements of 10 the motions ( Memorandum ); (2) the In support of his affidavit of John (Docs. 72-74.) undisputed facts. 11 On March 10, 2008, Defendants filed a reply and evidentiary 12 objections. (Docs. 90, 94.) Defendants objected to the affidavits 13 of John Mastrangelo and Michael Caloyannides, PhD., and Plaintiff s 14 Statement of Disputed Facts. (Doc. 85, 87, 92.) 15 By Minute Orders filed on March 10, 2008, April 23, 2008, June 16 11, 2008, and August 5, 2008, the hearing on the motions for 17 summary judgment were continued due to the press of court business. 18 (Docs. 76, 97, 98, 100.) 19 the hearing from August 11, 2008 to August 25, 2008. The August 5, 2008 Minute Order continued 20 On August 11, 2008, Plaintiff filed a Supplemental Affidavit 21 of Michael Caloyannides, PhD, in opposition to the motions for 22 summary judgment (Doc. 101). 23 his Reply and Objections to Defendants Separate Statements of 24 Undisputed Facts in opposition to the Employer Defendants motion 25 for summary judgment, (Doc. 102), his Reply and Objection to 26 Defendant Local 9333's statement of undisputed facts in support of 27 Local 9333's motion for summary judgment, (Doc. 103), and his 28 Reply and Objection to Defendant District 9's statement of On August 12, 2008, Plaintiff filed 13 1 undisputed facts in support of District 9's motion for summary 2 judgment, (Doc. 104). 3 Supplemental Statement of Disputed Facts. Also on August 11, 2008, Plaintiff filed a (Doc. 105.) 4 On August 14th, 2008, Pacific Bell, Spencer, and Brown filed 5 a motion to strike the documents filed by Plaintiff on August 11th 6 and 12th. 7 for August 25, 2008, the same day as the summary judgment hearing. 8 9 By (Doc. 106.) Minute The hearing on the motions to strike was set Orders filed on August 20 and 28, 2008, and September 2, 2008, the hearing on the motions for summary judgment 10 and motions to strike was continued.13 11 September 2, 2008 Minute Order continued the hearing from September 12 15, 2008 to September 29, 2008. (Docs. 118, 120, 121.) The 13 The parties appeared before the court on September 29, 2008, 14 for argument on Defendants motion for summary judgment and motion 15 to strike. During the September 29, 2008 hearing, the Court stated 16 to Plaintiff s counsel if you can find me a case, I ll let you do 17 it, that says that the making a [sic] negligent or an incomplete 18 investigation that breaches the duty of fair representation. 19 October 2, 2008, Plaintiff filed a Submission of Supplemental 20 Authority After Oral Argument Re: Motion for Summary Judgment . 21 (Doc. 130.) On 22 On October 7, 2008, Pacific Bell, Spencer, and Brown moved to 23 strike Plaintiff s Supplemental Authority on the ground that it was 24 not authorized to be filed by the Court and constituted a re- 25 briefing of arguments and authority already presented to the Court. 26 27 13 28 The hearings were continued either by stipulation or due to the press of court business. 14 1 (Doc. 133.) District 9 joined the motion on October 10, 2008. 2 (Doc. 134.) The Court denied Defendants motion on October 27, 3 2009 and granted Defendants an opportunity to file responsive 4 papers to the supplemental authority. (Doc. 135.) 5 On November 10, 2008, Pacific Bell, Spencer, and Brown filed 6 a response to Plaintiff s Submission of Supplemental Authority 7 After Oral Argument Re: Motion for Summary Judgment. (Doc. 139.) 8 9 10 A. Motion to Strike (Doc. 106.) The motion for summary judgment was filed by Defendants on 11 December 28, 2007 and noticed for hearing on January 28, 2007. 12 Stipulation and Order filed on January 22, 2008, (Doc. 59), the 13 hearing on the motions for summary judgment was continued to March 14 17, 2008. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By The Stipulation and Order provided: Any opposition or reply shall be filed in accordance with F.R.C.P. and Local Rules based on the new hearing date [March 17, 2008]. Plaintiff shall not seek a further continuance of the Summary Judgment Motions and shall not raise the need for additional time in Plaintiff s Opposition to the Summary Judgment Motions. Plaintiff s oppositions February 29, 2008. to these motions were filed on Although Plaintiff filed his Statement of Undisputed Facts in opposition to the motions for summary judgment, Plaintiff did not comply with the requirements of Rule 56-260(b), Local Rules of Practice: Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied 15 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 upon in support of that denial. Defendants reply papers were filed on March 10, 2008. By Minute Orders filed on March 10, 2008, April 23, 2008, June 11, 2008, and August 5, 2008, the hearing on the motions for summary judgment was continued due to the press of court business. The August 5, 2008 Minute Order continued the hearing from August 11, 2008 to August 25, 2008. On August 11, 2008, Plaintiff filed a Supplemental Affidavit of Michael Caloyannides, PhD. (Doc. 101.) On August 12, 2008, Plaintiff filed his Reply and Objections to Defendants Separate Statements of Undisputed Facts in opposition to the Employer Defendants motion for summary judgment, (Doc. 102), his Reply and Objection to Defendant Local 9333's statement of undisputed facts in support of Local 9333's motion for summary judgment, (Doc. 103), and his Reply and Objection to Defendant District 9's statement of undisputed facts in support of District 9's motion for summary judgment. (Doc. 104.) Also on August 11, 2008, Plaintiff filed a Supplemental Statement of Disputed Facts, (Doc. 105), which purports to add Plaintiff s disputed facts Nos. 300 to 463. Plaintiff did not seek or obtain leave of Court to file these papers, which sought to correct the deficiencies and non-compliance with the rule of court in his earlier submissions. Defendants move to strike Plaintiff s August 12, 2008 filings on the grounds that they were filed six months after Plaintiff was required to file them. (Docs. 109, 112.) Defendants note that, although the Court continued the hearing dates for the motions for summary judgment, the Court did not continue the filing deadlines 28 16 1 and, in fact, all briefing on the motions for summary judgment was 2 complete as of March 10, 2008. 3 78-230, Local Rules of Practice, does not provide for the filing of 4 sur-reply papers. 5 6 Defendants further note that Rule Plaintiff argues that Rule 78-230(c) allows the filing of the papers filed on August 11 and 12, 2008: 7 Opposition, if any, to the granting of the motion ... shall be filed with the Clerk not less than fourteen (14) days preceding the noticed (or continued) hearing date. 8 9 10 Plaintiff asserts that, because the hearing date for the 11 motions for summary judgment was continued by the Court several 12 times, his supplemental opposition papers are timely and no leave 13 of Court to file them was necessary. 14 The law and motion rules do not provide for a game of ping-pong. 15 The moving party has a right to file a motion a reply to the non- 16 moving 17 response, not a sur-rebuttal. 18 19 20 21 22 23 24 25 26 27 28 party s response. The This is categorically wrong. opposing party is permitted a By Declaration filed on August 22, 2008, Plaintiff s counsel avers that he filed the Supplemental Caloyannides Declaration: 1. A supplemental affidavit was filed by Michael Caloyannides, PhD due to the objections which were filed by defendants to his original affidavit. Although we are confident that his original affidavit stands on its own we determined that a supplemental affidavit would be prudent just in case. 2. It took many months of careful review of all of the depositions, police reports, affidavits, SBC Asset Protection Report, moving documents, and all other documents to make the decision ultimately to file the supplemental affidavit. Whether or not all of these items will ultimately be found to be admissible by the court our expert reviewed them. 17 1 2 3 3. After this careful and thoughtful review Dr. Caloyannides, PhD provided his affidavit to plaintiff s counsel which in turn was filed by the court [sic]. The date that the affidavit was provided was mere days before it was filed. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4. We believe that this supplemental affidavit sets to rest once and for all the methods and practices employed by Dr. Caloyannides to make his findings. These methods and practices are scientific and are followed by his fellow scientists. In an effort to aid the trier of fact we have filed this affidavit. 5. We believe that all of the documents that we have recently filed are timely given the movement of the date set for hearing these motions to September 8, 2008 and given that oral argument would have been made and will be made at that hearing, if allowed. We anticipate that all sides will be making oral argument at the hearing. We have anticipated and organized our thoughts into writing to aid the trier of fact. We will be specifically addressing those points at oral argument if permitted to do so. The defendants through their respective counsel will likely also be permitted to address those points and perhaps others as well. 6. It has been pointed out that an affidavit may be required to support the supplemental affidavit of Michael Caloyannides, PhD. Therefore, in an effort to comply with all local rules, we are now filing this affidavit. 7. We respectfully request that this affidavit and the affidavit of Michael Caloyannides, PhD be considered when making a decision about the Motion [sic] for Summary Judgment and Motions to Strike. 8. We carefully reviewed the local rules and Federal Rules of Civil Procedure when opposing these motions and perhaps we may have misinterpreted or failed to recognize this particular rule. 9. I sincerely apologize for the late filing of this affidavit. 27 28 18 1 Plaintiff s reading of Rule 78-230(c) misses the mark. 2 Plaintiff s opposition to the motions for summary judgment was 3 filed on February 29, 2008. 4 March 10, 2008, the date on which the Court first continued the 5 hearing date on the motions for summary judgment due to the press 6 of Court business. All briefing in connection with the motions for 7 summary judgment was complete as of March 10, 2008. 8 Stipulation and Order filed on January 22, 2008, Plaintiff agreed 9 to file his oppositions to the motions for summary judgment by Defendants replies were filed on By the 10 February 29, 2008. Plaintiff s construction of Rule 78-230(c) is 11 further the 12 supplemental opposition papers fourteen days prior to the April 28, 13 2008 hearing date, the June 16, 2008 hearing date, or the August 14 11, 2008 hearing dates set by the Court s Minute Orders. All of 15 these hearing dates were continued by the Court after that two week 16 period elapsed. belied by fact that Plaintiff did not file his 17 Plaintiff asserts that, if the Court does not construe Rule 18 78-230(c) as Plaintiff does, Plaintiff requests tardy leave of 19 court to cure our inadvertent error and that Plaintiff sincerely 20 believed that we were in compliance with the rules. 21 Plaintiff s the Local Rule, but rather an attempt to correct his previous 25 failure 26 opposition to the motions for summary judgment. 28 56-260(b), and is to apparent the 24 Rule It given Plaintiff s untimely filings were not the result of a misreading of with above. reasonable 23 comply described not sequence to events are 22 27 of protestations get a that second Pacific Bell, Alan Brown, and Shane Spencer s motion to strike the late filings is GRANTED. 19 1 2 IV. LEGAL STANDARD. 3 Summary judgment is appropriate when the pleadings, the 4 discovery and disclosure materials on file, and any affidavits show 5 that there is no genuine issue as to any material fact and that the 6 movant is entitled to judgment as a matter of law. 7 P. 56(c). 8 initial responsibility of informing the district court of the basis 9 for its motion, and identifying those portions of the pleadings, 10 depositions, answers to interrogatories, and admissions on file, 11 together with the affidavits, if any, which it believes demonstrate 12 the absence of a genuine issue of material fact. Celotex Corp. v. 13 Catrett, quotation 14 omitted). Fed. R. Civ. A party moving for summary judgment always bears the 477 U.S. 317, 323 (1986) (internal marks 15 Where the movant will have the burden of proof on an issue at 16 trial, it must affirmatively demonstrate that no reasonable trier 17 of fact could find other than for the moving party. Soremekun v. 18 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also 19 S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 20 2003) (noting that a party moving for summary judgment on claim as 21 to which it will have the burden at trial must establish beyond 22 controversy 23 quotation marks omitted). 24 non-moving party will have the burden of proof, the movant can 25 prevail merely by pointing out that there is an absence of evidence 26 to support the nonmoving party s case. Soremekun, 509 F.3d at 984. 27 When a motion for summary judgment is properly made and supported, 28 the every non-movant essential cannot element of the claim) (internal With respect to an issue as to which the defeat the 20 motion by resting upon the 1 allegations or denials of its own pleading, rather the non-moving 2 party must set forth, by affidavit or as otherwise provided in Rule 3 56, specific facts showing that there is a genuine issue for 4 trial. 5 242, 250 (1986)). Conclusory, speculative testimony in affidavits 6 and moving papers is insufficient to raise genuine issues of fact 7 and defeat summary judgment. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. Id. 8 To defeat a motion for summary judgment, the non-moving party 9 must show there exists a genuine dispute (or issue) of material 10 fact. A fact is material if it might affect the outcome of the 11 suit 12 [S]ummary judgment will not lie if [a] dispute about a material 13 fact is genuine, that is, if the evidence is such that a 14 reasonable jury could return a verdict for the nonmoving party. 15 Id. at 248. 16 district court does not make credibility determinations; rather, 17 the 18 justifiable inferences are to be drawn in his favor. under the governing law. Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the evidence of the non-movant is to be believed, and all Id. at 255. 19 20 21 V. A. DISCUSSION. Plaintiff s Evidence 22 1. 23 In opposition to Defendants motions for summary judgment, 24 Plaintiff presented an affidavit from Mastrangelo as rebuttal 25 evidence. 26 affidavit on various grounds. 27 following objections: 28 Affidavit of John Mastrangelo 1. Defendants object to large portions of Mastrangelo s Specifically, Defendants raise the I was expelled from the union Local 9333 and 21 1 District 9, and forced to retire from the company as an unrepresented employee technician during the first week of January, 2006. Prior to that time, I was union steward in charge of sitting in on grievances. However, much to my dismay, I had no power nor budget to investigate grievances. 2 3 4 5 Defendants object to the first paragraph of Mastrangelo s 6 affidavit on relevance grounds. Relevant evidence is defined as 7 "evidence having any tendency to make the existence of any fact 8 that is of consequence to the determination of the action more 9 probable or less probable than it would be without the evidence." 10 Fed R. Evid. 401. 11 is 12 admissible." 13 it has limits; evidence must be probative of a fact of consequence 14 in the matter and must have tendency to make existence of that fact 15 more or less probable than it would have been without evidence. 16 U.S. v. Curlin, 489 F.3d 935, 943-44 (9th Cir. 2007). admissible Rule 402 provides that "[all] relevant evidence [...] Evidence which is not relevant is not Although definition of "relevant evidence" is broad, 17 The circumstances underlying Mastrangelo s retirement and his 18 dismay as a steward have no connection to Plaintiff s claims 19 against the Defendants. 20 circumstances, as he had been terminated. 21 budgetary concerns are irrelevant to whether Pacific Bell breached 22 the CBA or Brown and Spencer defamed Plaintiff. 23 about the budget does not speak to the handling of Plaintiff s 24 grievance. 25 26 They show he left the union under adverse Mastrangelo s prior This assertion Defendants objections are sustained. 2. In 2004, I trained Mr. Smith for Cable locating duties as a fill in technician. He became full time technician after June 15, 2005 due to another locator have been arrested for murder. 27 28 This portion of Mastrangelo s 22 affidavit is irrelevant. 1 Plaintiff s status as a fill in technician and the details how he 2 became a full-time technician are not connected to his claims of 3 defamation 4 sustained. 5 or breach of the CBA. Defendants objection is 3. Blake Smith has also never been untruthful with co-workers or supervision. SBC/Pac Bell brings up prior discipline of Mr. Smith, but what they don t state is that Mr. Smith provided the company with honest answers and has never been accused of not telling the truth at least until the incident that led to his termination. 6 7 8 9 Defendants object to the above portion of Mastrangelo s 10 affidavit on grounds it contains conjecture and was not made on the 11 basis of his personal knowledge. Rule 56(e) of the Federal Rules 12 of Civil Procedure requires that affidavits supporting and opposing 13 a motion for summary judgment shall be made on personal knowledge, 14 shall set forth such facts as would be admissible in evidence, and 15 shall show affirmatively that the affiant is competent to testify 16 to the matters therein. 14 17 Manstrangelo recites that he has personal knowledge of the 18 matters set forth in his affidavit based on his then position as 19 Union Steward. Yet the assertions of his third paragraph require 20 knowledge about every instance in which Plaintiff spoke with 21 SBC/Pacific Bell officials and/or union representatives. 22 23 24 25 26 27 28 14 In some cases it can be inferred from the affidavit that the personal knowledge requirement is met. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (inferring from the affiant's position and nature of participation in the matter, as an investment banker who represented the defendant in certain negotiations, that he had personal knowledge of the circumstances of those negotiations and the intent of the parties with respect to the agreement reached). Barthelemy is distinguishable; such a situation cannot be inferred from the present facts. 23 1 Mastrangelo expresses opinion testimony not based on reputation in 2 the community. 3 resources associate, Mr. Mastrangelo simply was not present or in 4 a position to acquire such comprehensive knowledge. 5 Mastrangelo has his own knowledge (unverified) that he has never 6 observed Plaintiff be untruthful with co-workers or supervision. 7 This conclusion is unsupported by any facts. 8 and speculation about the opinions of others is all inadmissible. 9 Defendants objections are sustained. 10 11 12 13 14 15 16 As a union steward, and not a manager or human At best, Mr. His personal opinion 4. In that incident, and the events leading to his dismissal, I am confident based on my knowledge of his work history, that on the date of the incident that he simply dropped his keys while doing cable locates. Immediately following the incident, Blake Smith contacted me via cell phone and relayed the facts to me as follows: Myron David Riddle came riding his bicycle upon the site where the keys had been dropped due to the fact that Blake had been wearinng carpenters pants (loose fitting pants). Riddle then picked up the keys, walked over to the drivers side of the vehicle, unlocked the drivers side door, started the vehicle and sped off in great haste. 17 Defendants object to the first sentence of paragraph four on 18 grounds it contains conjecture, improper opinion, and was not made 19 on the basis of his personal knowledge. The objection is sustained 20 for the reasons stated above and because the witness has no 21 foundational knowledge to know what happened in the incident, 22 except to accept Plaintiff s side of the story. Defendants object 23 to the remaining portion of paragraph four on hearsay grounds. To 24 the extent that the statements are offered to prove the truth of 25 the matter asserted, they are inadmissible. See Fed R. Evid. §§ 26 801-802 ( Hearsay is not admissible except as provided by the 27 Federal Rules of Evidence [...] ). 28 24 1 2 Paragraph five of Mastrangelo s affidavit spans seven pages 3 and contains sixteen subparts. Defendants object to the bulk of 4 paragraph five on the grounds it contains inadmissible hearsay, 5 conjecture, improper opinion, speculation, and was not made on the 6 basis of his personal knowledge. 7 fifth paragraph concerns Plaintiff s claims against the Union 8 Defendants and is an argument irrelevant to Plaintiff s claims 9 against Pacific Bell, Brown, and Spencer. The majority of Mastrangelo s Defendants objections 10 to the fifth paragraph of Mastrangelo s affidavit are sustained. 11 For example: 12 5(a). I repeatedly told the union President Johnson, that GPS was not reliable. I informed them that it needed to be investigated. I was simply ignored. They did zero (0) investigation. They accepted the findings of the company as fact. 13 14 15 Defendants objections are sustained. There is nothing in the 16 affidavit to establish Mr. Mastrangelo is knowledgeable about or 17 qualified to opine on the reliability of GPS equipment. The 18 affidavit also does not provide a basis for Mastrangelo to form a 19 legal opinion as to whether the union breached the duty of fair 20 representation.15 21 5(c). The union President Lynn Johnson would continually state "We will take this case to arbitration". "We don't investigate at this stage, we wait until arbitration for that". She also told me "The company investigation states that Blake lied". I would ask about what proof the company had and she would say "he lied". 22 23 24 25 26 27 28 15 There are few cases in which expert testimony on a union s duty of fair representation was found necessary or useful to a jury. See e.g., Pease v. Production Workers of Chicago and Vicinity Local 707, 2003 WL 22012678 at *4-*5. 25 1 Paragraph five, subpart (c), includes several hearsay 2 statements, including Lynn Johnson s statements regarding how the 3 Union 4 company's investigation that Mr. Smith "lied," and the alleged 5 extension of time for the company to respond to the second step 6 grievance. 7 declarant, offered in evidence to prove the truth of the matter 8 asserted. 9 as provided by the Federal Rules of Evidence, or other rules would handle Plaintiff s grievance, her report of the Hearsay is a statement, other than one made by the Fed. R. Evid. 801(c). Hearsay is not admissible except 10 prescribed by the Supreme Court. 11 statements were made outside of court, not by the affiant, and are 12 offered in evidence to prove the truth of the matter asserted.16 13 Such inadmissible hearsay evidence cannot be considered on a motion 14 for summary judgment. 15 Plaintiff s claims against Pacific Bell, Brown, and Spencer. 16 5(e). The responding officers were never interviewed by the union despite the fact that Mr. Smith had the cell phone numbers for both the CHP officer and Sheriff Deputy who had taken reports on the date of the incident. Both were interested in speaking to the company and union on behalf of Mr. Smith. This was never pursued by anybody at the union or the company. The company simply read what they wanted from the police reports and there was never any substantiation from the officers despite the fact that they were reachable. 17 18 19 20 21 Fed. Rule Evid. 802. These Paragraph 5(c) is also irrelevant to the 22 Defendants objections concerning paragraph five, subpart (e), 23 are sustained. There is no source of knowledge for Mastrangelo s 24 assertions regarding the police officers' interest and intent. 25 There is no information to establish personal knowledge for 26 27 28 16 Plaintiff has not established these statements come within any of the exceptions to the hearsay rule. 26 1 Mastrangelo s conclusion that nobody spoke to the officers and that 2 the company simply accepted the reports at face value. 3 Civ. Proc. 56(e). 4 See Fed. R. 5(f). The union never questioned the fact that Roxanne Diaz was conducting the investigation for the company when she had been caught in lies on numerous occasions in the past during other investigations. She should have never been investigating anything let alone something as important as Mr. Smith's future employment. 5 6 7 8 5(g). The union never questioned why Alan Brown was allowed to "test" the vehicle Mr. Smith was driving and why it took several weeks after the incident for it to happen. Mr. Brown has no qualifications with GPS to be testing its accuracy. He has no advanced degrees, he had little to no experience with the @road system at the time because it had been installed two (2) weeks prior to this incident. He also had no experience in pulling the @road GPS reports so these could not have been done by him. 9 10 11 12 13 14 Paragraph five, subparts (f) and (g), contain inadmissible 15 hearsay and improper opinion that cannot be considered to establish 16 a genuine issue of material fact. 17 improper opinion testimony and lacks personal knowledge concerning 18 the 19 cognizable on summary judgment, evidence must be competent. 20 not enough for a witness to tell all she knows; she must know all 21 she tells. 22 F.3d 1026, 1028 (9th Cir. 2001). Paragraphs 5(f) and (g) are also 23 irrelevant 24 Defendants objections are sustained. 25 26 27 28 information contained in Further, Plaintiff offers subparts (f) and (g). To be It is Carmen v. San Francisco Unified School District, 237 to the Plaintiff s claims Brown and Spencer. 5(h). The unions never questioned whether the company protected its own equipment namely its vehicles. I know for a fact that the company does not change the keys for each of the trucks every time an employee leaves the company either voluntarily or when they are terminated. I also know that one set of keys can open multiple trucks and including starting their ignitions. The company was 27 1 2 3 well aware of this and used it to their advantage when an employee would call in sick. Rather than have to go get the keys from him, they would just go to the middle of the yard and grab a hand full of keys and the guys would go from truck to truck until one opened and started. This is certainly not a very good security policy. 4 5 The claims contained in Mastrangelo s fifth paragraph, subpart 6 (h), require knowledge about every instance in which Pacific Bell 7 officials questioned individuals about its equipment and how trucks 8 and keys are maintained. 9 require Plaintiff to have foundational knowledge about Pacific 10 Bell s internal key/vehicle policies, as well as every instance in 11 which an employee did not report to work because of an illness. 12 Mr. Mastrangelo had no such duties and was not in the position to 13 acquire such personal knowledge. 14 establish any basis for Mastrangelo s conclusions. 15 statements contained in paragraph 5(h) cannot be considered on 16 summary judgment. 17 18 19 The assertions of paragraph 5(h) also There is no information to T h e 5(i). The union never questioned the disparate treatment or Hostile Treatment that Mr. Smith sustained after he reported Mr. Dan Devine and an incident between Devine and another employee that occurred on or about July of 2004, in which Devine brandished a Shot gun at a fellow employee. 20 21 Testimony in the form of a legal conclusion is an 22 inappropriate matter for expert testimony. See U.S. v. Scholl, 166 23 F.3d 964, 973 (9th Cir. 1999) (excluding expert testimony offering 24 a legal conclusion); Aguilar v. International Longshoremen's Union, 25 966 F.2d 443, 447 (9th Cir.1992) (noting matters of law are for the 26 court s determination, not that of an expert witness); see also 27 Marx & Co. v. Diners' Club, Inc., 550 F.2d 505, 509-10 (2d 28 Cir.1977) (expert testimony consisting 28 of legal conclusions 1 inadmissible). 2 conclusions 3 hostile 4 Paragraph 5(i) is also irrelevant to the Plaintiff s claims against 5 Brown and Spencer. 6 7 8 9 10 on Mastrangelo whether treatment. inappropriately Plaintiff These suffered legal opinions offers legal disparate and/or are inadmissible. 5(l). It was also discovered that Mr. Riddle was an Ex-SBC employee and also had priors for Auto Theft. This was never pursued by the union. This demonstrates that he has familiarity with the SBC trucks and would know about the multiple truck, single key security breach. Especially because the company never re-keyed its vehicles after changing employees. Therefore, even if the keys would not have been on the ground, the thief Riddle could have gained access to the vehicle. 11 There is no information to establish personal knowledge 12 regarding Mr. Riddle s alleged past history; nor is there any 13 information to support the claim that Mr. Riddle knew about the 14 multiple key/single truck problem. This is speculation. To the 15 extent that these statements are offered to prove the truth of the 16 matter asserted, they are inadmissible. Fed R. Evid. §§ 801-802 17 ( Hearsay is not admissible except as provided by the Federal Rules 18 of Evidence [...] ). Paragraph 5(l) is also irrelevant to the 19 Plaintiff s claims against Pacific Bell, Brown, and Spencer. The 20 claims contained in paragraph 5(l) cannot be considered on summary 21 judgment. 22 23 24 25 26 27 28 5(m). On or about December 21st of 2005, Lynn Johnson unilaterally contacted the company to notify them that the deadline to respond to the 2nd step grievance was about to expire and she asked the company whether they wanted an extension of time to respond. This is very significant because pursuant to the CBA Chapter 7.05 D2b. the failure to timely respond within 30 days by the company results in the grievance being resolved in favor of the union. This meant that Blake Smith would have had his job back prior to Christmas of 2005. Instead Local 9333, Union President Lynn Johnson, took it upon herself to extend the response time to January 29 1 2 3 4 5 5,2006. Her purported rationale was "Well, no one will show up from the company anyway, so it will just be a waste of everyone's time to go during vacation time". The problem with that rationale is that a failure to show up is a bad faith failure to bargain by the company. This means that Blake Smith would also have gotten his job back by the company's failure to appear. Therefore, this excuse held no water. I still don't buy it. 6 Defendants object to paragraph five, subpart (m), on grounds 7 it contains speculation and was not made on the basis of his 8 personal knowledge. Defendants objections have merit. There is 9 no evidence to support the conclusion that the grievance would have 10 been resolved in Mr. Smith s favor. Seeking a continuance was 11 within the union s discretion. There is also no showing that Mr. 12 Mastrangelo is qualified to opine the legal conclusions of what 13 conduct constitutes a bad faith failure to bargain. Defendants 14 objections are sustained. 15 16 17 18 19 20 21 22 23 24 5(o). The other significant issue that was never raised is that Blake Smith had no reason to lie. There are at least two (2) specific instances that Mr. Smith and I had and have specific knowledge of, where employees of the defendants left their keys in their vehicles and the vehicles were stolen by third parties. In the first case, an employee by the name of Mr. Reynolds was at McDonalds in Modesto and it resulted in a three (3) day suspension. The second case, Mr. Cordova was at a B-Box in Modesto and it resulted in a one (1) day suspension. Mr. Smith was aware of the consequences for leaving his vehicle running and unattended and despite this knowledge he did not do so. The penalty was not as severe as the company is making it out to be. Mr. Smith has taken a lot of grief for being honest about what occurred on that October afternoon. These are yet two (2) more examples of disparate treatment by the union and company. 25 26 Defendants object to the above portion of Mastrangelo s 27 affidavit on grounds it contains speculation, hearsay, and was not 28 30 1 made on the basis of his personal knowledge. For the reasons 2 discussed above, the objections are sustained. The last sentence 3 of 4 inappropriately reaches legal conclusions on whether Plaintiff 5 suffered disparate treatment. Paragraph 5(o) is also stricken because Mastrangelo 6 A substantial portion of Mastrangelo s fifth paragraph and its 7 subparts are inadmissible to establish a genuine issue of material 8 fact. 9 union failed in its duty to adequately represent Plaintiff; his 10 unqualified opinions on the functionality of the GPS system, his 11 criticisms of Lynn Johnson, and his musings on vehicle keys are 12 irrelevant to the Plaintiff s claims against Brown and Spencer. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mastrangelo s argumentative conclusions concerning how the 6. I grew tired of leaving over a dozen phone calls, to the Union President, Lynn Johnson, and attempted to reach Tony Bixler three (3) times by telephone. After finally receiving a response from him on my fourth ... attempt, he stated that he himself was not able to reach Lynn Johnson. A letter regarding the disparate treatment I observed firsthand was prepared by me and then was presented to Lynn Johnson at Blake Smith s 2nd step grievance meeting, on or about January 5, 2005, and President Johnson approved it. I then went ahead and cc d it to every person of influence in the company and union at each level to try and evoke change [...] 7. On or about January 7, 2005 I received a call from President Lynn Johnson, which stated I was expelled from the local 933 union and District 9 union at the demand of Tony Bixler at the Union s District 9 office because of my letter. 8. I have always been told by the company to report grievances and that was all that was being done but since I could not get the attention of anybody, I sent the letter. I was simply trying to find out what sort of investigation the union was doing but I was being ignored like Blake Smith. I lost my job over it like Blake Smith. At least I was able to keep my retirement. Although I am concerned about testifying, I can no longer remain silent over the concern I have that the company might find a way to take any retirement from me. 31 1 9. I know why the union at each level and company s attempted to silence me and it was because they conducted zero (0) investigation, they simply went with the SBC Asset Protection Report which was one (1) sided and easily refuted if only they had tried. After I had been forced into retirement the union simply ignored Blake Smith until he hired an attorney to find out the status of the case. 2 3 4 5 6 Defendants Pacific Bell, Brown, and Spencer object to 7 paragraphs 6-9 of Mastrangelo s affidavit on grounds they are 8 speculative, irrelevant, lack foundation, contain conjecture and 9 were not made on the basis of personal knowledge. 10 11 Defendants objections are sustained. In paragraphs 6 through 9 of Mastrangelo s affidavit, he gives 12 several examples of his interactions with the local union, 13 especially Lynn Johnson. 14 behind his departure. 15 circumstances of his dismissal and his continuing conflict with the 16 local union are not probative of any consequential facts in this 17 litigation. 18 943-44 (9th Cir. 2007). The statements contained in paragraph nine 19 are speculative, without foundation and argumentative. 20 not considered. 21 Corp., 121 F.3d 496, 502 (9th Cir. 1997) (conclusory statements 22 without factual support are insufficient to defeat a motion for 23 summary 24 knowledge to conclude that the Union Defendants conducted zero 25 investigation. His knowledge as a union steward did not extend so Mastrangelo also details the reasons Mastrangelo s statements concerning the Fed. R. Evid. 401- 402; U.S. v. Curlin, 489 F.3d 935, They are See National Steel Corp. v. Golden Eagles Ins. judgment.). Mastrangelo 26 27 28 32 did not have the personal 1 far.17 2 10. Two weeks prior to the October 17, 2005 incident which eventually led to the termination of Blake Smith s employment, an @road GPS system was installed by one (1) person who was apparently not a licensed contractor. In fact, he appeared like he had just been released from Folsom prison based on his lack of uniform and numerous tattoo s. During and before installation of this device, I observed the device and all necessary equipment needed for its installation and operation sitting in the back of an open, uncovered and untied pickup truck bed. The truck displayed no commercial logo of any sort and as such, was unmarked for any apparent business purposes. Certain components were haphazardly placed into cardboard boxes, wires were tangled and randomly arranged on the boxes. Wires had been spliced and twisted together and it just looked like a mess of wires. I was really concerned. 3 4 5 6 7 8 9 10 11 12 11. It was at the time, and perhaps still is, company policy to question unauthorized persons on the yard, and because of his appearance, and the apparent lack of any legitimate purpose of being in the yard, I questioned the individual as to whom he was and why he was on the yard. The person who installed the equipment at the time is described as follows: Heavily tatooed on upper body and he wore only a white tanktop undershirt. The installer s appearance made an impression on me because the company has, in the past, been victim of theft of cable and wire. I even remember making a comment about the installer s appearance to Alan Brown who was present that day and he told me I know. Because he was present that day and saw the method of installation, Alan Brown knew there was a problem with the installation. 13 14 15 16 17 18 19 20 21 12. All trucks were outfitted with the @road systems the same day. However, the installation person returned twice ... during the same two ... week period to repair and remedy malfunctioning @road devices. I do not know if there were other instances where repairs were necessary during this period because I did not observe this individual again. 22 23 24 25 13. The company also never cited previous disciplinary 26 27 17 28 Mastrangelo was terminated prior to Plaintiff s 2nd grievance hearing. This event limits the scope of his knowledge. 33 1 actions as their basis for their decision to fire Blake Smith to do so is and was a violation of the provision of the contract which prescribes retaliation by the company against employees based on past grievances. 2 3 4 14. During the decades that I had been with the company I have never seen an employee fired for absences. It was very common for unpopular employees to get written up for every sick day. The company has a zero ... tolerance policy for sick time. They will counsel an employee after every sick day much like they did Blake Smith during the 2004-2005 period. I also know that if the employee was liked by a particular manager, he would not be disciplined and the grievance process would be circumvented. This would be no matter how many absences a particular employee had. 5 6 7 8 9 10 11 Defendants raise numerous objections to paragraphs 10 through 12 14 of Mastrangelo s affidavit. Mastrangelo s statements concerning 13 the technician s physical description, Alan Brown s alleged 14 thoughts about the GPS system, the installation and repair history 15 of the GPS system, and Pac Bell s counseling of employees with a 16 history of absences, lack foundation. The majority of these 17 statements are not based on evidentiary facts in the record and are 18 too speculative; others, such as speculation about the appearance 19 and honesty of the technician, are irrelevant to the Plaintiff s 20 claims and, for the most part, do not involve Plaintiff. The 21 objections are sustained. 22 Paragraphs ten through fourteen also contain inadmissible 23 hearsay. To the extent that the statements are offered to prove 24 the truth of the matter asserted, they are inadmissible. 25 A substantial portion of Mastrangelo s affidavit is 26 inadmissible argument. Hearsay assertions by Mr. Mastrangelo and 27 matters not supported by the record or by a demonstration of 28 34 1 personal knowledge or corroborating evidence, are insufficient to 2 establish a genuine issue of material fact. 3 not considered in deciding this motion for summary judgment. Such statements are 4 5 2. Affidavit of Michael Caloyannides 6 On February 29, 2008, Plaintiff filed an affidavit from 7 Michael Caloyinnides ( Caloyinnides ) in support of his opposition 8 to Union Defendants motion for summary judgment. In his affidavit, 9 Caloyannides, a purported GPS expert, questions the accuracy of GPS 10 systems and criticizes Brown s October 18, 2005 test verifying the 11 functionality of the GPS system attached to Plaintiff s work 12 vehicle. 13 Company Defendants and Union Defendants to dismiss Plaintiff solely 14 based on this @road GPS information and he would not trust this 15 system for any purpose whatsoever beyond providing basic advisory 16 information that is understood to be inherently unreliable, and 17 certainly not to discharge an employee utilizing this system as the 18 sole basis. Caloyinnides states that it was irresponsible for the (Dec. of Caloyannides ¶ 16.) 19 Defendants object to Caloyannides affidavit on grounds that 20 he improperly opines that Pacific Bell and the Union Defendants 21 could not use GPS information in discipline and discharge cases. 22 (Doc. 92.) However, it is undisputed Pacific Bell and the Union 23 reached a binding side-letter agreement authorizing the use of GPS 24 in disciplinary actions. 25 26 27 28 The side letter agreement provides: GPS is one of many management tools used to review employee performance or behaviors. GPS will not be used as the sole basis for disciplinary action, but may be used to substantiate information obtained from other sources. As in all cases where discipline may be warranted, management will conduct a complete and thorough investigation and 35 1 may utilize GPS reports as an additional tool in the investigation. 2 As the employees exclusive bargaining representative, the 3 Union enjoys broad authority ... in the negotiation and 4 administration of [the] collective bargaining contract. 5 Communications Workers v. Beck, 487 U. S. 735, 739 (1988). But 6 this broad authority is accompanied by a responsibility of equal 7 scope, the responsibility and duty of fair representation. 8 Humphrey v. Moore, 375 U. S. 335, 342 (1964). The employer has a 9 corresponding duty under the NLRA to bargain in good faith with 10 the representatives of his employees on wages, hours, and 11 conditions of employment. 29 U. S. C. §158(a)(5); see also 12 §158(d). Through collective bargaining, a public employer and 13 union can reach agreement on detailed factual questions having 14 important implications. Bolden v. Southeastern Penn. Trans. Auth., 15 953 F.2d 807, 828 (3rd Cir. 1991) (emphasizing the rational for 16 preventing an individual employee from raising a constitutional 17 claim on an issue that is the subject of a CBA). 18 In this instance, it is undisputed that the Union and Pacific 19 Bell collectively bargained in good faith and agreed that GPS could 20 be used to discipline employees. As part of any contractual 21 negotiation, an employer may agree to the inclusion of a provision 22 in a collective-bargaining agreement in return for other 23 concessions from the union. 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 24 1456, 1464-65 (2009). Courts generally may not interfere in this 25 bargained-for exchange. (Id.; Utility Workers of Am. v. Southern 26 Cal. Edison, 852 F.2d 1083, 1086 (9th Cir. 1998) ( to the best of 27 our knowledge, ... no court has held that the right to be free from 28 36 1 drug testing cannot be negotiated away... ). It is undisputed that 2 CWA and Pacific Bell entered into a valid agreement governing the 3 use of GPS records by Pacific Bell. 4 and Pacific Bell is valid and must be honored. 5 The agreement between the CWA As Pacific Bell and the Union collectively bargained for the 6 use 7 challenging its accuracy and usage. 8 are inadmissible to create a genuine issue of material fact. 9 only relevant inquiry is whether Pacific Bell used and relied on 10 of GPS data, Plaintiff cannot offer expert testimony Caloyannides opinions on GPS The the GPS data. 11 Even assuming his opinions on the use and accuracy of GPS data 12 are admissible, Defendants object to Caloyannides affidavit on the 13 grounds that he lacks personal knowledge, fails to consider all the 14 facts in the record, and his expert opinions violate Rule 702 of 15 the Federal Rules of Evidence.18 16 Under the Federal Rules of Evidence, expert testimony is 17 admissible if: (1) the testimony is based upon sufficient facts or 18 data, (2) the testimony is the product of reliable principles and 19 methods, and (3) the witness has applied the principles and methods 20 reliably to the facts of the case. 21 matter: Fed.R.Evid. 702. As a general 22 23 24 25 26 27 28 18 Defendants did not offer any expert testimony to contradict Caloyannides opinion regarding the use of GPS. Instead, they rely on the declaration of Steve Larson, Manager of Vehicle Tracking Systems since 2001, who is familiar with the subject GPS units and stated that they are extremely accurate and extremely reliable. (Larson Dec. ¶ 5.) Larson also stated that if the GPS unit is not functioning properly, the report will indicate there is a problem. (Id.) There is no evidence in the record to suggest that Plaintiff s GPS system malfunctioned on October 17, 2005. 37 1 The subject of an expert's testimony must be scientific ... knowledge. The adjective scientific implies a grounding in the methods and procedures of science. Similarly, the word knowledge connotes more than subjective belief or unsupported speculation.... [I]n order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation- i.e., good grounds, based on what is known. In short, the requirement that an expert's testimony pertain to scientific knowledge establishes a standard of evidentiary reliability. 2 3 4 5 6 7 8 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90, 113 9 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (footnotes omitted). Based upon 10 the foregoing principles, the Daubert Court discussed four factors 11 which a trial court may use to determine the admissibility of 12 proposed expert testimony: testing, peer review, error rates, and 13 acceptability in the relevant scientific community. Kumho Tire 14 Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 15 238 (1999) (citation omitted) (holding that Daubert analysis also 16 applies to the testimony of engineers and other experts who are 17 not scientists ). 18 In this case, Plaintiff offers the affidavit of Michael 19 Caloyannides, who holds a PhD in Applied Mathematics and a Master 20 of Science degree in Electric Engineering. Based upon his 21 affidavit, Plaintiff plans to introduce Caloyannides opinion that 22 it was irresponsible for the Company Defendants and Union 23 Defendants to dismiss Mr. Smith solely based on this @road GPS 24 information. Defendants argue, correctly, that Mr. Caloyannides' 25 opinion is inadmissible because it does not meet the requirements 26 of Rule 702. He is not legally trained and cannot offer a legal 27 conclusion. 28 38 1 It cannot be fairly disputed that Caloyannides is qualified, 2 based upon his education and experience, to testify as an expert in 3 the fields of GPS technology and computer forensics. 4 is not one of GPS expertise or experience, per se, but a lack of 5 expertise and experience with respect to the subject matter at 6 issue -- whether the Union Defendants breached the duty of fair 7 representation and whether the Pacific Bell dismissed Plaintiff 8 based solely on the @road GPS information, which is all beyond 9 Caloyannides knowledge or his experience. 10 The problem Mr. Caloyannides lack of expertise in these critical areas is 11 best demonstrated 12 irresponsible for the Company Defendants and Union Defendants to 13 dismiss 14 Caloyannides assertions, the Union Defendants neither suspended 15 Plaintiff nor terminated him in 2005; all adverse employment 16 actions 17 implemented by Pacific Bell, his former employer. 18 Mr. Caloyannides is unfamiliar with the appropriate legal standards 19 with respect to Plaintiff s claims, he completely disregards the 20 relevant facts, including that Plaintiff was terminated by Pacific 21 Bell 22 misrepresenting facts during an investigation. 23 expertise does not extend to Pacific Bell s employment decisions or 24 the Plaintiff taken for his solely against failure grievance by argumentative based on Plaintiff to procedures safeguard in GPS opinion data. 2005 were company administered by that it Contrary initiated was to and Perhaps because assets and for Caloyannides GPS the Union.19 Mr. 25 19 26 27 28 Caloyannides concludes, without an apparent basis in either expertise, experience, or acknowledged principles in the field of employment practices, that he would not trust this system for any purpose whatsoever beyond providing basic advisory information that is understood to be inherently unreliable, and certainly not to 39 1 Caloyannides cannot address these critical issues based upon his 2 expertise and experience. 3 Defendants also contend that Caloyannides affidavit lacks the 4 requisite reliability because it is based on incomplete facts and 5 selective 6 affidavit relies heavily on the mistaken belief that Plaintiff was 7 terminated 8 Defendants, this critical error, along with Caloyannides limited 9 review of the record, led him to assert an alternative timeline 10 documents. solely based Defendants on GPS rejoin that information. Caloyannides According to that is inconsistent with the undisputed evidence in this case. 11 If the basis for an expert s opinion is clearly unreliable, 12 the district court may disregard that opinion in deciding whether 13 a party has created a genuine issue of material fact. See Daubert, 14 509 U.S. at 596 (if the trial court concludes that the scintilla 15 of 16 insufficient to allow a reasonable juror to conclude that the 17 position more likely than not is true, the court remains free to 18 ... 19 admissible only if an expert knows of facts which enable him to 20 express a reasonably accurate conclusion. Jones v. Otis Elevator 21 Co., 861 F.2d 655, 662 (11th Cir. 1988). Opinions derived from 22 erroneous data are appropriately excluded. Slaughter v. Southern 23 Talc Co., 919 F.2d 304 (5th Cir. 1990). [expert] grant evidence summary presented judgment ). supporting Relevant a expert position testimony is is Both the determination of 24 25 26 27 28 discharge an employee utilizing this system as the sole basis. It appears the Union and Pacific Bell considered this proposition when they negotiated the side-letter agreement. (See Side Letter Agreement , Exh. B to Dec. of D. Flores, GPS will not be used as the sole basis for disciplinary action, but may be used to substantiate information obtained from other sources. ) Most of this opinion is a legal conclusion. 40 1 reliability itself and the factors taken into account are left to 2 the 3 gatekeeping function under Fed.R.Evid. 702. 4 v. Carmichael, 526 U.S. 137 (1999). discretion of the district court consistent with its Kumho Tire Co., Ltd. 5 Caloyannides asserts that the only plausible explanation of 6 the evidence is that Plaintiff turned off his vehicle at 1:12 p.m. 7 and 8 inconsistent with the undisputed facts of this case and casts doubt 9 on his competence and the reliability of his opinions. it was stolen at 1:19 p.m. Caloyannides timeline is All of the 10 evidence in the record supports the conclusion that Plaintiff s 11 vehicle was stolen before 1:12 p.m.: 12 1. Mr. Brown s cellular phone records indicating an incoming call from Plaintiff at 1:12 p.m. on October 17, 2005; 13 14 2. The California Highway Patrol s report stating that an officer was notified of the vehicle theft at approximately 13:10 hours on October 17, 2005; 15 16 3. The Sheriff s Department report stating that a deputy spotted the stolen vehicle at approximately 13:15 hours on October 17, 2005; and 17 18 4. GPS data provided by @road indicated that Plaintiff s vehicle was in idle status between 1:02 and 1:11 p.m. and the engine was off between 1:12 p.m. and 1:19 p.m. 19 20 21 Caloyannides timeline is also inconsistent with Plaintiff s 22 own version of events, as communicated to the Sheriff s Deputies on 23 the day of the theft and repeated in his deposition on August 1, 24 2007. 25 Nunes Road and Washington Street and began cable locating 200 yards 26 away. 27 westbound on Nunes Road. 28 the vehicle when it turned northbound on Ninth Street (toward Dora According to Plaintiff, he parked the car near the corner of He then noticed an individual enter the vehicle and take off Plaintiff states that he lost track of 41 1 Avenue). According to the Sheriff s report, Plaintiff s vehicle 2 was spotted at 13:15 near the corner of Dora Avenue and Ninth 3 streets, about a mile away from the intersection of Nunes and 4 Washington.20 5 flee the vehicle, apprehending one suspect in the backyard of 5312 6 8th street, a block from the corner of Dora and Ninth. 7 thereafter, Plaintiff arrived at this location with a Sheriff s 8 deputy. At this time, the deputies observed two individuals Shortly 9 According to Caloyannides, the above evidence does little to 10 demonstrate that the vehicle was stolen before 1:12 p.m. on October 11 17th. 12 keeping devices - of the GPS provider, California Highway Patrol, 13 cellular phone company, and Stanislaus County Sheriff s Department 14 - contributed to the faulty timeline. 15 savings time. Caloyannides further states that it is important to 16 note 17 intentionally and the electronic data has been destroyed by the 18 defendant companies. 19 Pacific Bell and the Union conspired to fraudulently alter or 20 destroy the GPS results to support his theory. This is unsupported 21 by the record. 22 23 Caloyannides states that a lack of calibration among time that this [GPS] system ... could He also blames daylight have been manipulated Caloyannides inferentially suggests that Caloyannides does not rely on accurate evidence to support his alternative timeline.21 Caloyannides opinions are conclusory and 24 25 26 27 28 20 Dora Avenue and Nunes Street are parallel to one another. Ninth street is the main artery between the two streets. 21 Caloyannides opinions are based on his personal experience with GPS ( I would not trust this [GPS] system for any purpose whatsoever ), a hypercritical critique of Brown s GPS test on 42 1 argumentative, making them insufficient to raise genuine issues of 2 fact and defeat summary judgment.22 3 1040, 1045 (9th Cir.1989) ( A summary judgment motion cannot be 4 defeated by relying solely on conclusory allegations unsupported by 5 factual data. ); see also Falls Riverway Realty, Inc. v. Niagara 6 Falls, 754 F.2d 49, 57 (2d Cir.1985) (Conclusory, speculative 7 testimony in affidavits and moving papers is insufficient to raise 8 genuine issues of fact and defeat summary judgment). See Taylor v. List, 880 F.2d 9 Under Daubert, a trial judge has an inescapable obligation to 10 determine whether proffered expert testimony in a particular case 11 is "scientific" and whether the proffered expert's "knowledge" will 12 assist the trier of fact. Daubert, 113 S.Ct. at 2795. 13 this obligation the court must determine that the proposed expert's 14 testimony must be both "reliable" and "relevant." See U.S. v. City 15 of Miami, Florida, 115 F.3d 870, 873 (11th Cir. June 20, 1997) 16 (stating that [r]elevant expert testimony is admissible only if an 17 expert knows of facts which enable him to express a reasonably 18 accurate conclusion. ). To fulfill 19 20 21 22 23 24 25 26 27 28 October 18, 2005 ( the first event states that Mr. Brown stopped at 5851 Washington but the @road reflects 5927 Washington ), the @road disclaimer, and accusations of fraud. Caloyannides does not provide any information concerning the GPS device attached to Plaintiff s vehicle on October 15, 2005; Caloyannides also readily admits that he needed additional information to complete his review of Pacific Bell s GPS devices, making his opinions incomplete. (Caloyannides Dec. ¶ 13.) 22 In contrast to Caloyannides affidavit, Mr. Larson states that the GPS device was affixed to Plaintiff s vehicle several years ago; it is extremely accurate and reliable; it indicates when the vehicle is idling and when it is turned on and off; and there was no problem with Plaintiff s GPS unit on October 17, 2005. (Larson Dec. ¶¶ 1-8.) 43 1 Taken cumulatively, Caloyannides testimony is unreliable. 2 Consistent with the role of the district court as gatekeeper , see 3 General Elec. Co. v. Joiner, 522 U.S. 136 (1997), Defendants 4 objections to the Caloyannides affidavit are sustained. 5 Caloyannides affidavit offers legal conclusions. 6 Caloyannides did not limit his opinions to the functioning and 7 accuracy of GPS; rather, Caloyannides opined as to the legal 8 standards which he believed to be derived from the collective 9 bargaining agreement and what standards should have governed the 10 conduct of Pacific Bell and the Union. 11 common practice concerning GPS data, but rather opined what was 12 necessary to satisfy the CBA. Such testimony is a legal conclusion 13 and is an inappropriate matter for expert testimony. 14 Scholl, 15 testimony offering a legal conclusion); Aguilar v. International 16 Longshoremen's Union, 966 F.2d 443, 447 (9th Cir.1992) (noting 17 matters of law are for the court s determination, not that of an 18 expert witness); see also Marx & Co. v. Diners' Club, Inc., 550 19 F.2d 505, 509-10 (2d Cir.1977) (expert testimony consisting of 20 legal conclusions inadmissible). 21 expressed legal conclusions on the issue of terminations under the 22 CBA. 166 F.3d 964, 973 (9th Cir. He did not testify about 1999) See U.S. v. (excluding expert Caloyannides inappropriately His opinions are inadmissible. 23 Finally, Defendants object that Caloyannides never reaches 24 conclusions on the ultimate issues, such as whether the Union 25 breached 26 functionality. Defendants argument has merit. Caloyannides only 27 opinion concerning the union is that they were irresponsible to 28 dismiss Mr. Smith solely based on this @road information. Pacific its duty of fair representation 44 based on the GPS s 1 Bell s decision to terminate Plaintiff has no bearing on whether 2 the union breached the duty of fair representation. 3 the current case law reveals there are few cases in which expert 4 testimony on a union s duty of fair representation was found 5 necessary or useful to a jury. See Pease v. Production Workers of 6 Chicago 707, 2003 7 (summarizing on expert 8 representation cases and finding that Plaintiff s expert would not 9 be useful in helping the jury understand whether the Union s 10 conduct was so fair outside a wide range of reasonableness as to be 11 actionable. ). 12 and Vicinity the Local case law WL A survey of 22012678 testimony at *4-5 in fair Defendants objections are, for the most part, sustained. 13 Those portions of Caloyannides affidavit violating Rule 702 or 14 containing conjecture, speculation, or legal conclusions will not 15 be considered. Caloyannides s assertions that are not supported by 16 the 17 corroborating evidence, are insufficient to establish a genuine 18 issue of material fact. record, by a demonstration of expert knowledge or by 19 20 3. Deemed Admissions 21 In his Statement of Disputed Facts, Plaintiff relies on a 22 number of his Requests for Admissions, asserting that the facts 23 requested to be admitted or denied are deemed admitted because 24 Defendants Local 9333 and District 9 did not timely respond to 25 them. 26 Defendants Local 9333's and District 9's motions for summary 27 judgment, Plaintiff s argument is without merit. 28 establishes that Plaintiff s counsel agreed to an extension of time As discussed in the memorandum 45 decision concerning The record 1 to allow District 9 and Local 9333 to respond to his requests for 2 admission. 3 Facts that the Requests for Admission are deemed admitted because 4 Defendants failed to timely respond is without merit.23 Plaintiff s assertions in his Statement of Disputed 5 6 B. Plaintiff s Statement of Disputed Facts 7 On February 29, 2008, Plaintiff filed a Statement of Disputed 8 Facts (Doc. 72,( PSDF ).) in support of his opposition to Union 9 Defendants motion for summary judgment. Plaintiff s 73-page 10 Statement of Disputed Facts is a series of excerpts from purported 11 deemed admissions and summarized testimony of affiants John 12 Mastrangelo and Michael Caloyannides. 13 Facts is organized according to witness and deemed admission. Most 14 of Plaintiff s disputed facts are taken verbatim from the deemed 15 admissions and affidavits of Mastrangelo and Caloyannides. 16 Nos. 6, 10-172, 297, pp. 3-45, 71). Plaintiff s Statement of 17 Disputed Facts includes disputed facts that are immaterial (e.g., 18 Fact No. 79, Mr. Dan Devine brought a loaded gun to work, but there 19 were shotgun shells on the seat next to the weapon, so it is of 20 little consequence to me and my workers). 21 Disputed Facts contains non-enumerated statements unaffiliated to 22 the indexed disputed facts The Statement of Disputed (Fact The Statement of (e.g., Doc. 72, 72:26-72:27, why 23 24 25 26 27 28 23 Assuming arguendo that Plaintiff s Requests for Admissions are deemed admitted, those deemed admissions are limited to District 9; they are not binding on the other defendants such as Pacific Bell, Adam Brown, or Shane Spencer. See Castiglione v. U.S. Life Ins. Co. in City of New ..., 262 F.Supp.2d 1015, 1030 (D.Az.2003), citing Riberglass, Inc. v. Techni-Glass Industs., Inc., 811 F.2d 565, 567 (11th Cir.1987). 46 1 would the thief have dropped the bike at the back of the van unless 2 he had to pick up the keys to gain entry?). 3 disputed facts concern Plaintiff s deposition testimony. 4 facts are either undisputed or irrelevant to the ultimate issues of 5 this case. Approximately fifty These 6 At issue in this action is the effect of Plaintiff s failure 7 in many instances to provide support for the allegations in the 8 Complaint, and now in his opposition to summary judgment. 9 Eastern District of California s local rules have The strict 10 requirements regarding opposing summary judgment motions; the local 11 rules require litigants to a response to the movant s statement of 12 undisputed material facts (admitting or denying the facts with 13 citation to the record). 14 party may also file a concise "Statement of Disputed Facts," of all 15 additional material facts as to which there is a genuine issue 16 precluding summary judgment or adjudication. 17 did not file a response to Defendants statement of undisputed 18 facts; rather, he filed a Statement of Disputed Facts as part of 19 his opposition to Defendants motion. 20 See E.D. Cal. R. 56-260(b). Id. The opposing Here, Plaintiff Such rules are specifically designed to avoid the procedural 21 morass that has developed in this case. When Plaintiff does not 22 file an opposition to the movant s undisputed facts, instead filing 23 a 73-page statement of disputed facts, it is difficult to identify 24 the universe of actual, material, factual disputes and the legal 25 efficacy of such disputed facts. 26 the filings in this case imposed on limited judicial resources. The time required to decipher 27 In light of the rulings on the objections to the affidavits of 28 Mastrangelo (Fact Nos. 60-99) and Caloyannides (Fact Nos. 6, 1047 1 59), as well as the determination concerning the deemed admissions 2 (Fact Nos. 100-172), Plaintiff s Statement of Disputed Facts is 3 insufficient to create a genuine issue of material fact.24 4 5 C. Plaintiff s Third Cause of Action. 6 Plaintiff can only maintain his cause of action for breach of 7 contract against Pacific Bell if he can maintain the corresponding 8 breach of duty of fair representation claim against District 9 and 9 the Local Union. See Stevens v. Moore Business Forms, Inc., 18 10 F.3d 1443, 1447 (9th Cir. 1994) (individual employee cannot sue 11 employer for breach of CBA containing mandatory arbitration clause 12 absent a breach of duty of fair representation by employee s 13 union). 14 Because Plaintiff cannot sustain his Fifth Cause of Action for 15 breach of the duty of fair representation against the union 16 defendants in handling Plaintiff s grievance and their refusal to 17 pursue his subsequent arbitration, Plaintiff cannot sustain his 18 corresponding cause of action for breach of contract against 19 Pacific Bell for the conduct which gave rise to his grievances. 20 Summary judgment is therefore GRANTED for Pacific Bell, Alan Brown, 21 and Shane Spencer on Plaintiff s Third Cause of Action as well. 22 23 D. Plaintiff s Sixth Cause of Action. 24 Pacific Bell moves for summary judgment in connection with the 25 Sixth Cause of Action for defamation by slander and blacklisting, 26 27 28 24 The remaining portions of Plaintiff s Statement of Disputed Facts are either irrelevant to the issues of this case, repetitive, admitted (but not material), or otherwise objectionable. 48 1 2 which is alleged against all Defendants. In his sixth and for relief, Plaintiff Spencer uttered false alleges and that 3 Defendants 4 publications regarding him to fellow employees. 5 Plaintiff states that Brown unlawfully disclosed to his former co- 6 workers that he had been fired for lying during an investigation. 7 Plaintiff also claims that Spencer told Brown that he doubted 8 Plaintiff s version of events and would use GPS to prove it. 9 Slander is defined as "a false and unprivileged publication," 10 uttered orally, which tends directly to injure the subject in 11 respect to his office, profession, trade or business. 12 Code § 46. 13 includes any language which, on its face, has a natural tendency to 14 injure a person with respect to her occupation. Semple v. Andrews, 15 27 Cal. App. 2d 228, 232,(1938). 16 Brown claim unprivileged Specifically, Cal. Civ. The statutory definition of slander is very broad and The claim of blacklisting evolved from California Labor Code 17 Sections 18 litigation against his former employer for misrepresentations made 19 after he has left employment that preclude him from finding future 20 employment. Newberry v. Pacific Racing Asso., 854 F.2d 1142, 1151- 21 1153 (9th Cir. 1988). 22 provides that "any person ... who, after having discharged an 23 employee 24 misrepresentation 25 employee from obtaining employment, is guilty of a misdemeanor." 26 Cal. Lab. Code § 1050. 27 recover for violations of section 1050. Id. § 1054. 28 1050 and from 1054, the which allow an employee to initiate Section 1050 of the California labor Code service prevents or of such attempts person to ... prevent the by any former Section 1054 authorizes a civil action to Defendants contend, however, that the statements made to 49 1 Pacific Bell employees regarding Plaintiff s dismissal are subject 2 to the common interest privilege codified at Cal. Civ. Code 47(c). 3 The common interest privilege is a qualified privilege that applies 4 to a publication made without malice if "the communicator and the 5 recipient have a common interest and the communication is of a kind 6 reasonably 7 Williams v. Taylor, 129 Cal. App. 3d 745, 751 (Ct. App. 1982). 8 privilege applies to a defendant acting to protect a pecuniary or 9 proprietary calculated interest to protect and between or further parties in that a interest." The contractual, 10 business, or similar relationship. Kashian v. Harriman, 98 Cal. 11 App. 4th 892, 914 (Ct. App. 2002). California Courts have also 12 consistently interpreted the provision to apply in the employment 13 context. 14 Union 180 Cal. App. 3d 985, 995 (Ct. App. 1986). Cuenca v. Safeway San Francisco Employees Fed. Credit 15 "Application of the privilege involves a two-step analysis. 16 The defendant has the initial burden of showing the allegedly 17 defamatory statement was made on a privileged occasion, whereupon 18 the burden shifts to the plaintiff to show the defendant made the 19 statement with malice." 20 state of mind arising from hatred or ill will, evidencing a 21 willingness to vex, annoy or injure another person.' Malice may 22 also be established by showing that defendants 'lacked reasonable 23 grounds to believe the statement true and therefore acted with 24 reckless disregard for plaintiff's rights.'" 25 Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 736 (9th 26 Cir. 1999)(quoting Lundquist v. Reusser, 7 Cal. 4th 1193, 1204 27 (1994). 28 communication itself. Malice may Id. at 915. not be Malice is defined as a inferred, Coastal Abstract however, from the Noel v. River Hills Wilsons, Inc., 113 Cal. 50 1 2 App.4th 1363, 1370, 7 Cal. Rptr. 3d 216, 221 (Ct. App. 2003). Here, Brown s statements were made to a fellow employee who, 3 during a staff meeting, asked why Plaintiff was terminated. Brown 4 responded with the Company s reason for terminating Plaintiff - 5 that Plaintiff was dismissed for misrepresenting facts during an 6 investigation. 7 communication made between two Pacific Bell employees - Plaintiff s 8 superiors, Spencer and Brown - who allegedly stated that they 9 doubted Plaintiff s story. Plaintiff s other allegation of slander is a Because these statements are presumed 10 to be privileged, Plaintiff has the burden to prove that the 11 statements were made with actual malice so as to defeat the 12 privilege. 13 Specifically, Plaintiff must create a triable issue of fact whether 14 the statements were made with actual malice, i.e., "a state of mind 15 arising from hatred or ill will, evidencing a willingness to vex, 16 annoy, or injure another person." 17 932, 944, 160 Cal. Rptr. 141, 603 P.2d 58 (1979). Williams v Taylor, 129 Cal. App. 3d 745, 752 (1982). Agarwal v Johnson, 25 Cal. 3d 18 In his complaint and opposition, Plaintiff fails to address § 19 47 and the requirement that the communication be made with actual 20 malice. 21 legal elements and reiterates that Brown should not have told his 22 co-workers the reason for his termination and that Spencer and 23 Brown were out to get him. 24 do not show that Brown or Spencer acted with "actual malice" when 25 making the statements at issue with respect to Plaintiff s claim 26 for slander. 27 accurate responses to the questions posed by fellow Pacific Bell 28 employees and Spencer doubted Plaintiff s story. Rather, Plaintiff provides a rote incantation of the This is insufficient. These statements It demonstrates that Brown provided candid and 51 This is subject 1 matter they had an interest in. Plaintiff does not identify any 2 employer rule that makes his grievance proceeding confidential or 3 that prohibit persons at the company with knowledge of the reasons 4 for termination from giving a truthful response to an inquiry about 5 termination of Plaintiff s employment. These were matters that the 6 communicator has an interest in within § 47 privilege. 7 has failed to provide evidence demonstrating that there is a 8 triable issue of fact whether the statements were made with the 9 "actual malice" suffices to overcome the qualified privilege. Plaintiff 10 Plaintiff has failed to create a triable of fact whether the 11 disputed statements were made with actual malice or that they were 12 in any way related to a prospective employer.25 13 for summary judgment on the sixth cause of action is hereby 14 GRANTED. 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // Defendants motion 25 26 27 28 25 Plaintiff has no evidence from which it may be inferred that Plaintiff applied for a position with the Napa Auto Parts store or that the unnamed technician acted on behalf of the Union Defendants or Pacific Bell. 52 1 VI. 2 For the reasons set CONCLUSION. forth above, Pacific Bell s, Shane 3 Spencer s, and Alan Brown s motion to strike is GRANTED and motion 4 for summary judgment is: 5 6 (1) GRANTED as to Plaintiff s third cause of action for breach of contract. 7 8 (2) GRANTED as to Plaintiff s sixth cause of action for slander and black listing. 9 Defendants shall submit a form of order consistent with this 10 memorandum decision within five (5) days of electronic service. 11 IT IS SO ORDERED. 12 Dated: 9i274f August 11, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53

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