LEWIS BRISBOIS BISGAARD k. SMITH LI.P
TIMOTHY J. WATSON, SB// 131650
E-Mail:Tim. WatsonIa)lewisbrisbois.corn
RYAN P. GARCHIE, SB// 244376
E-Mail:Rvan.Garchie@lewisbrisbois.corn
701 B Street, Suite 1900
San Diego, California 92101
Telephone: 619.233.1006
Facsimile: 619.233.8627
Attorneys

for Defendant NORTH COUNTY TRANSIT DISTRICT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY

10
CASE NO. 37-2013-00067620-CU-WT-NC

VIRGINIA MOELLER,
Plaintiff,

13
14 NORTH COUNTY TRANSIT DISTRICT,
DOES I THROUGH 20, INCLUSIVE,

15
Defendants.

16

DEFENDANT NORTH COUNTY
TRANSIT DISTRICT"S REPLY IN
SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THK
ALTERNATIVE, SUMMARY
ADJUDICATION; MEMORANDUM OF
POINTS AND AUTHORITIKS IN
SUPPORT THEREOF
Date:
Time:
Judge:
Dept.:

April 24, 2015

I:30 p.m.
Jacqueline M. Stem
N-27

Action Filed:
Trial Date:

September 19, 2013
August 7, 2015

IMAGED FILE

TO PLAINTIFF AND HER ATTORNEYS OF RECORD:
Defendant North County Transit District (hereinafter "NCTD") hereby submits the instant
reply memorandum

of points

and authorities

in support

of its motion for

summary judgment.

LEWIS
BRISBOIS

BI~D

DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADIUDICATION

 I
2

MEMORANDUM

I.

OF POINTS AND AUTHORITIKS

INTRODUCTION
There is no triable issue as to the key material facts in this case. Layoffs were necessary at

NCTD due to financial conditions, as confirmed by Plaintiff in her complaint and deposition.

Because the vast majority of NCTD layoffs were bus operators and fleet and facility employees,
there was no longer a need for a nine person Human Resources
department

heads were tasked with laying

{"HR")depaitment.

All

off all of their employees unless they could provide

justification for not making the layoff. The HR department was reduced to three persons by 2012,
all

of whom were over 40 years old

and two

of whom

a female over 60, was the one who recommended

were female. Plaintiff s former supervisor,

Plaintiff for layoff and Plaintiff has no evidence

to dispute this fact, Plaintiff admits that Matthew Tucker never made any age or gender related
comment to her and that he hired consultants who recommended

the layoffs. Plaintiff admits she

does not know, and can only speculate as to what Mr. Tucker's specific input was into the decision

to lay her off. These are all facts which are not, and cannot, be disputed.
Plaintiff's strategy in Opposition is two-fold. First, Plaintiff has attempted to overwhelm

NCTD and the Court in a mountain of paper. The only declarations offered, by disgruntled former
employees, contain inadmissible

statements about entirely unrelated alleged situations at NCTD.

This is not a class action. This is not a multi-plaintiff

case. This case is about Virginia Moeller.

There is no relevant, admissible evidence offered to meet Plmntiff s burden.
detail, the Declarations

of Hannasch

As set forth below in

and Lockwood fail to provide admissible evidence supporting

Plaintitps claims. Plaintiffhas ignored pertinent Civil Procedure sections as well as California
Rules of Court. PlaintiA's counsel, who lives in Texas, filed his Opposition papers on Thursday,
April 2 but did not serve them in a manner calculated to reach NCTD by the next business day as
required by Code Civ, Proc. $

1005{c). Instead, he waited and served them the next day and the

papers did not arrive at counsel for NCTD's office until the atiemoon
days later than they could have and should have arrived.

of Monday,

April 6, three

Plaintiff also disregarded the 20 page

limit for Oppositions in multiple ways. Her points and authorities are 25 pages in length.

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In

addition, she has used her response to NCTD's separate statement as a means through which to
I

DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 add 189 pages to her opposition.
undisputed

Indeed, rather than indicating whether a fact is disputed or
argument with each and

and citing to evidence, Plaintiff has included a voluminous

every fact. She has done this while providing NCTD less time to reply than is required by

(Cal. Rules Ct.,

California law. This alone constitutes grounds for granting summary judgment.

5 Rule 3.113(g).)
Second, Plaintiff has thrown in the red herring
continuance and delay the granting

of a discovery

of summary judgment. First

dispute to request a

and foremost, NCTD complied

with this Court's order and its verified responses state that no responsive documents to requests

Second, statistical evidence is

86, 88 or 89 exist. Its vntness confirmed the same at deposition.
inadmissible

for purposes of NCTD's motion for summary judgment as disparate impact theory is

of inquiry for

not pleaded in the complaint and the complrdnt is the outer limits
judgment.

(580 Folsom Associates

13 FPI Development, Inc.
rewarded for her lack

v. JYalrashima

v.

Prometheus Development

summary

Co. (1990) 223 Cal.App.3d 1, 14;

(1991)231 Cal.App.3d 367.) Finally, Plaintiff

of diligence. She

has been in possession

this discovery since early July 2014 and NCTD's

of NCTD's

should not be

original responses to

MSJ since August 2014, but has failed to

timely take action. Even more, she did not take a single deposition until NCTD urged her to do so

in opposition to her motion to compel. There is no basis for a continuance. (See, Crarchie Decl.)

IL
19

PLAINTIFF HAS FAILED TO MKKT HER BURDEN OF ESTABLISHING A

TRIABLE ISSUE OF MATERIAL FACT
A.

21

Plaintiffs Onnositlon Fails To Set Forth Anv Admissible Evidence Creatinu A
Triable Issue Of Material Fact

Plaintiffs Opposition consists largely of "facts" that are inadmissible,

immaterial

and

irrelevant to any issue raised in the motion. NCTD declines to respond to the irrelevant facts. The

apparent strategy is to create irrelevant alleged disputes

of fact.

However, the law is settled that

25 summary judgment may be granted based on less than all of the facts set forth in a moving party'
separate statement.

(Alexander v. Codemasters (2002) 104 Cal.App.4th 129.) NCTD submits that

the evidence plaintiff presents fails to properly dispute any

LPJNS
BRISBQIS
85GAAAD

separate statement.

of the

material facts set forth in its

However, the Court may grant summary judgment
2

if it determines

that certain

DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 undisputed

facts are sufficient. As such, NCTD focuses herein on the critical undisputed

1,

facts,

Plaintiff Either Admits. Or Fails to Lealtimatelv Disnnte the Kev Facts
Necessarv for Grantina Snmmarv tndmnent

In her response to separate statement, Plaintiff admits that:

She was told by hcr manager, Jane ArnOI, that she was selected for
layoff because the reorganization at NCTD was going to affect the
HR Department and that her job was going to be eliminated with her
duties being absorbed by any remaining employees. (NCTD" s
Undisputed Material Fact ("UMF") No. 26)
She was informed by Ms. Arnold of her potential layoff at least one
and a half years before the layoff occurred. (UMF No. 27)

She was told by her next manager, Linda Barber, prior to June 30,
2011 that she might be subject to the next round of layoffs. (UMF
No. 28.)
She was told that she might be subject to layoff at the end of 2011
and was eventually laid of on December 30, 2011. (UMF No. 31).

13
14

In her response to separate statement, Plaintiff fails to legitimately

dispute that:

Jane Arnold both hired Plaintiff and made the first recommendation
to lay her off. (UMF No. 22)

Ms. Arnold, and all department heads were tasked with laying off all
of their employees unless they could provide justification for not
making the layoff. (UMF No. 23)

Ms. Arnold made thc recommendation to lay off Plaintiff because in
her opinion, there was no justification for retaining Plaintiff's
position. (UMF No. 24)
Neither age nor gender was any factor in Ms. Arnold*s
recommendation to lay off Plaintiff, (UMF No. 25)

In response to the four above-listed facts, Plaintiff failed to present a single piece

22

evidence to dispute this information which came directly from Jane Arnold's declaration.

of
Plaintiff

23 did not seek to take Arnold's deposition. As such, these facts should be deemed not in dispute.
Plaintiff further fails to legitimately dispute that:
Human Resources department employees were being laid off
because, as a result of the massive amount of people being laid off
overall at NCTD and hired by an outside contractor, thc department
no longer required as many employees. (UMF No. 32)

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st avIIH up

28

PlaintifTs only response to this fact is an objection based on a lack of foundation.
3

The

DEFENDANT NORTH COUNTY TRANSIT DISTMCT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 objection is misplaced.

UMF No, 32 was supported by two declarations: Arnold and

Importantly,

Tucholski. There is no objection to this portion of the Arnold declaration.

Moreover, Ms.

Tucholski provides foundation by explaining that she has worked as the Manager

Resources and the Chief Administrative
course of her duties as HR Manager.
that can put fact 32 into dispute.

Officer and chained knowledge

There is not a single piece

of Human

of fact no. 32 during

of admissible evidence

the

presented

Plaintiff also admits that:

Mr. Tucker never made any age-related remark to her. (UMF 36)
remark to her. (UMF

Mr, Tucker never made any gender-related

37)

Mr. Tucker hired consultants to analyze NCTD's business activities
and they recommended outsourcing, involving layoffs and hiring by
an outside contractor. (UMF 40)
Even more, Plaintiff failed to present evidence that Mr. Tucker ever made any age or
gender related remark to anyone about Plaintiff.

Critically, Plaintiff admitted that: she does not know what Mr. Tucker's specific input

14 was into the decision to lay her off. (UMF 3B.)

15

Plaintiff, a seasoned Human Resources nrofessional admitted that: she never made any

complaint to anyone at NCTD prior to, or at the time, of her layoff, alleging that she had
been subject to age or gender discrimination.

(UMF

41.)

There is only one Plaintiff in this case: Virginia Moeller. She lacks evidence related to her
employment

or her layoff with which to meet her burden.

Based on all

of the above-cited

undisputed

facts, NCTD met its burden and Plaintiff failed

21 to meet hers in response. These undisputed facts are dispositive as to all causes of action.

2.

Plaintiff Intentionallv

Misunderstands

and Misleads as to the

Connection Between NCTD Finances and Her Lavoff
Plaintiff fails, or refuses, to understand the connection between the financial crisis at

NCTD and her layoff. Plaintiff devotes a significant portion of her Opposition arguing that the
financial condition

of NCTD was

improved by

2011, so its finances were not a legitimate basis for

her layoff. As explained in UMF 5, "As a result

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of changing NTCD's

business model, which

reuuired fewer direct emnlovees, there was no longer a need for a large Human Resources
DEFENDANT NORTH COU'NTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 at NCTD." In other words, having hundreds

Department

smaller HR department.

significantly

2011 is entirely irrelevant.

All

of the

of fewer

employees required a

discussion about finances having improved by

Moreover, Plaintiff cannot escape the admissions

of her complaint,

which states: "The NCTD experienced financial difficulties, and had a legitimate need to

'downsize'r layoff employees for economic reasons*'r her deposition testimony that:
was true that we were going through tough economic conditions,"

(Complaint $

"...it

11; Moeller

Depo, at pp. 80:4-81:8—NCTD*s Exh. 1,)

PlaintifPs Alleaed Evidence of Pretext is Ilnavailina

3,

In advancing beyond the permissible page limit, Plaintiff offers eight alleged examples

of

pretext. Each argument fails and/or lacks admissible evidence and fails to defeat summary
First, Plaintiff purports to cast doubt upon the reason given for her IayofK NCTD has

judgment.

presented admissible evidence explaining its financial condition and the connection to Plaintifp s

layoff. Second, Plaintiff asserts there is an absence
disingenuous

of corroborating

as the financial condition is not at issue based on her complaint and deposition

It also ignores the fact that NCTD produced more than 1,400 pages

15 testimony.

This argument is

documents.

of financial

16 documents to her in this case. Third, Plaintiff refers to (inadmissible) statements allegedly made
by Mr. Tucker. Those statements are addressed hereinbelow

Fourth, Plaintiff compares her treatment to that

and fail to support her claims.

of Steve Vigil. Plaintiff argues that Mr. Vigil

kept on longer, but lacks evidence regarding his age, the date his employment

was

ended or what his

job position and duties entailed. This is an incomplete and speculative argument.

Fifth, Plaintiff

21 argues that there is evidence of deviating from policies. Absent, however, is any admissible
evidence that NCTD deviated from policies with regard to her specific layoff. Sixth, Plaintiff
argues a failure to investigate.

of any

complaint

investigate.

This argument ignores Plaintiff's testimony that she never made a

kind during her employment.

In addition, references to other employees in this regard are incomplete, speculative,

lacking in foundation and unsupported
doubt on the nature

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BISGAARD

a sssIHup

cured by

(UMF 41,) Simply, there was nothing to

by admissible evidence.

of the workforce reduction. Plaintiff

2011. As explained above, Plaintiff's layoff

Seventh, Plaintiff purports to cast

again argues that the financial crisis was

was connected to the removal

of hundreds

5
DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 of direct

employees, which necessitated a smaller HR department.

This argument is misplaced.

Eighth, Plaintiff references a culture tolerating bias, but docs not list specifics. Each

references are inadmissible

instances Plaintiff presumably

doctrine,

In sum, each aspect

of Plaintiff's pretext

and also subject to the stray remarks

argument is easily dismissed and fails to defeat

Plaintiff has failed to meet hcr burden.

summary judgment in any manner.

4.

of the

PlalntifPs Onlv Aileacd Sunuortine "Evidence" Consists of Hearsav.
Allotted

Prior Bad Acts or Kntirclv Irrelevant Matters

This Court may recall that it previously denied Plaintiff's motion to compel related to
requests for production number 77 through 85 as they sought inadmissible

"bad character"

evidence. The Court set aside a full afternoon to review the requests and read Plaintiff" s counsel
the law related to specific instances

of alleged

bad acts. He nonetheless attempted to include this

12 evidence against NCTD's Motion. All of the alleged "evidence'" from thc Hannasch and

13 Lockwood declarations is inadmissible as set forth in NCTD's concurrently filed evidentiary
objections.
Plaintiff's only "evidence'" consists of inadmissible

NCTD about circumstances
disputes the truth

stories from two former employees of

that allegedly occurred to third parties, not to Plaintiff.

of these stories,

they fail to defeat summary judgment even

%bile NCTD

if true. In,

8'ilkerson v. 8'ei/s Forgo Bonk (1989) 212 Cal. App. 3d 1217, it was alleged that Plaintiff's
manager (Sanford) made a number

of different

comments about African-Americans.

The Court

of

20 Appeal held that:
%bile Sanford's alleged acts were odious, the evidence relied upon
by 9/ilkerson did not raise a triable issue as to whether his

23

termination was racially motivated. Accordingly, IJ/ilkerson's cause
of action for wrongful discharge in violation of public policy and his
punitive damage claim both fail.

(/d. at pp. 1228-1229, emphasis in original.)

The Declaration

of Richard

Hannasch is offered by Plaintiff to show alleged prior bad acts

and/or comments by Mr. Tucker. On the one hand, Mr, Hannasch declares that Mr. Tucker had no

problem making age or gender comments about NCTD employees.

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On the other hand, however,

the declaration concedes that Mr. Tucker never mode anv sue/I comment about ~ireinio itfoeller

6

DEFENDANT NORTH COUNTY TRANSIT DISTRICT" S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 in Hannasch's

presence. In fact, thc only alleged comment Mr. Tucker made about Plaintiff,

according to Hannasch, was that she "was not a team player." Again, NCTD asserts that thc
Hannasch declaration is inadmissible.

However,

if it is considered, a critical

reading

of thc

declaration reveals that it actually supports NCTD's motion.

Moreover, thc Hannasch and Lockwood declarations (even
summary judgment pursuant to the "stray remarks" doctrine.

Cnshman ~I IFa/refield western

if admissible)

fail to defeat

The Court of Appeal in Horn v.

(1999) 72 Cal. App. 4th 798, explained that:

"[S]tray'* remarks are insufficient to establish discrimination...
stray "remarks,... when unrelated to the decisional process, arc
insufHcient to demonstrate that the employer relied on illegitimate
criteria, even when such statements are made by the decision-maker
in

issue"...

v. Northwestern

(Jd. at p. 810, emphasis added, citing to Gagne

F.2d 309, 314-316; Smith

v.

Nat. Ins. Co. (6th Cir. 1989) 881

Co. (7th Cir. 1989) 875 F.2d 1325, 1330.)

Firestone Tire and/lubber

In Opposition, Plaintiff has failed to present any discriminatory

decisional nrocess

of her layoff. To the

contrary, the only (inaihnissible)

remark related to the

remark related

15 specifically to the decisional process of her layoff was that she "was not a team player." (Exh. B
to Opposition $ 14(k) [Curiously, while declaring in

17 Resources, Hannasch is silent as to his role in

v. Googie,

9 that he was the supervisor of Human

and/or approval

Plaintiff attempts to argue against application

19 Reid

tI

of PlaintifF s layoffj.)

of the "stray remarks" doctrine,

citing to

inc. (2010) 50 Cal. 4th 512. In ifeid, the California Supreme Court ruled that in

that specific case, the Court

is instantly distinguishable

of Appeal was not

required to apply the stray remarks doctrine.

/Ieid

because thc Plaintiff in that case alleged that his supervisor and other

employees made derogatory age-related remarks directiv to him every fcw weeks while he was

23 employed at Croogle. Here, the stray remarks are alleged comments made to nersans other than
the Piaintiff about nersans other than the Piaintiff. As such, the logic behind the decision in

iield is entirely inapplicable.

Finally, the Supreme Court did not overrule Horn, supra, nor did it

abolish the stray remarks doctrine. Its ruling was made based on the specific facts

5.
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of that case..

Plaintiff Has Failed to Meet Her Burden as to Retaliation

NCTD's motion presented evidence that Plaintiff cannot establish the required elements of
7

DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 1) pmtected activity; or 2) a causal link between any protected activity and her layoff. In her
Opposition section regarding retaliation (section III(D.)), Plaintiff fails to identify any evidence
supporting

either element.

6.

Plaintiff Has Failed to Meet Her Burden as to Neuiiuent Sunervision
and Failure to Prevent Discrimination

NCTD's motion and separate statement cite Plaintiff's deficient and conclusory discovery
responses in UMF Nos. 54, 56, as to the causes
negligent supervision,

of action for

failure to prevent discrimination

and

Plaintiff does not dispute that these are the responses she provided, which

constitutes a proper basis for summary judgment and/or summary adjudication as to these two

claims. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-594.) Moreover, as cited
in NCTD's motion, negligent supervision causes
wrongful temiination context. (Hine

v,

Dittr/ch

of action

are not permitted as a matter

of law

(1991)228 Cal.App.gd 59, 64.) Plaintiff's

Opposition offers no response to this clear law. Finally, the failure to prevent discrimination

14 fails because NCTD has established that no discrimination

15 her burden in response. {Tru/'illa

8.

v. /t/ortit

in a

claim

occurred, and Plaintiff failed to meet

Co. Transit Dist. (1998) 63 Cal.App.4th 28Q, 289.)

PlaintifPs Onlv "Evidence" Consists of the Declarations of Hannasch and

Lockwood. Which Fail to Provide the Court with Admissible Facts to Meet

Her Burden
Plaintiff's entire Opposition relies on the declarations

of former

employees, Richard

20 Hannasch and Susan Lockwood. As set forth in detail in the concurrently filed evidentiary
objections, the declarations are inadmissible

nearly in their entireties.

declarations to support her claims. Importantly,

is a combined cause

of action

not simply for being a woman.

the cause

Plaintiff relies on these

of action for

age/gender

discrimination

as Plaintiff alleges that she was laid off for being an older woman,

This is clear through the {inadmissible) argument that younger

25 women were preferred by Mr. Tucker. However, the Declarations of Hannasch and Lockwood
fail Plaintiff in multiple criticrd respects. These Declarations attempt to provide evidence by
telling stories about situations involving employees other than Plaintiff.

LEV/IS
BRISBCSS

anecdotes are inadmissible

All

of these

alleged

based on relevance and character evidence, among other bases.

8

DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 However,

if the Court

were to consider these statements, the declarations

fail to present

admissible evidence of the aces of anv of the third nartv women referenced in the stories.

Without that critical evidence, Plaintiff has failed to provide any basis for the Court to
conclude that, there was any legally improper treatment of older women. Plaintiff has failed

to provide any admissible basis for the Court to conclude that there was any legally

improper treatment of anyone similarly situated to the Plaintiff. The estimates of ages based
on appearance or labeling

of individuals as "older" or "younger"

by Hannasch and Lockwood are

speculative, improper opinions, lack foundation and are inadmissible.

These defects are fatal to

Plalntifp s attempt to meet her burden of presenting admissible supporting evidence.

III.

THK RKOUEST POR CONTINUANCE IS MISLEADING AND A RKD HERRING
Due to page limitations„and the improper volume of'laintiff's papers, NCTD lacks

sufficient space in which to fully respond to Plaintiff's request for a continuance.

In short, NCTD

complied with the Court's order by providing vcriTied responses stating that, after a diligent search
and reasonable inquiry, the documents requested arc not in its possession, custody or control and

do not exist. Plaintiff misrepresents

the substance

of testimony

by Karen Tucholski

of NCTD.

16 Ms. Tucholski confirmed to Plaintiff's counsel that the documents do not exist. (Tucholski Depo.,

—
pp. 80:20-81:18,83:11-22, 85:4-86:6, 86:9-87:25, 89:6-9 Exh.

"E"to Opposition.)

In addition,

18 even if they did exist, they would be irrelevant and inadmissible because disparate impact theory is
not pleaded in the complaint and theories outside

20 summary judgment.

of the

complaint are inadmissible

for purposes of

(580 Folsom Associates, supra; FPI Development„ lnc., supra.) Even more

specifically, the Court of Appeal reiterated this well-settled rule in May

of 2014 in It asenfeld

v.

Ahraham Joshua IIeschel Day School, Inc. (2014) 226 Cal.App,4th 886. The Itosenfeld court

23 explained that "Disparate impact and disparate treatment are different theories of employment
discrimination

with different elements."

{Id. at p. 889.) Based on this clear rule, the Court held

that because "Rosenfeld's pleadings solely alleged a theory

intentional

discrimination,"

of disparate

treatment, based upon

"the trial court properly precluded Rosenfeld from pursuing a

disparate impact claim at trial." {Id. at pp. 889, 896.) The same analysis applies at the summary

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judgment stage. No basis for a continuance exists. (See, Oarchie Decl. $$

9

1-11.)

DEFENDANT NORTH COUNTY TRANSIT DISTMCT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 PLAINTIFF HAS BLATANTLY DISREGARDED RULES FOR LENGTH AND

IV.

SERVICE AND HER OPPOSITION PAPERS SHOULD NOT BE CONSIDERED

2

Plaintiff s Opposition and supporting papers were served in a manner in violation of Code

of Civil

Procedure section 1005(c). PlaintifF s papers were filed on Thursday, April 2, 2015. As

such, they should have been served in a manner through wluch NCTD would have received them
by Friday, April

April

3. The papers were not served on April 2 as required, were sent from Texas on

3, and were not received until the afternoon of April 6. In so doing, she deprived NCTD of

three days in which it could have been reviewing her hundreds

of pages

and preparing

a reply. In

contrast, Plaintiff had been in possession of NCTD's motion for about 8 months. In addition,
Plaintiff has egregiously violated the 20 page limit for an opposition to an MSJ. Her points and
authorities alone are 25 pages. However, she added another 189 pages by including voluminous
argument as to each

13 authorities,

of NCTD's facts

and essentially converting her response to another points and

At the hare minimum, NCTD requests that the Court disregard anything beyond the

20'" page of PlaintiiF s Opposition as well as all argument in her response to separate statement.
More appropriately

given the circumstances,

however, the court should ignore/reject

opposition entirely and grant summary judgment pursuant Cal. Rules Ct., Rule
provides that a Court "must" treat a memorandum

V,

exceeding page limits

the

3.113(g),which

"as a late-filed naner."

CONCLUSION
Based on the foregoing, defendant NCTD respectfully requests that the Court grant its

20 motion for summary judgment in its entirety. Alternatively, NCTD requests that summary
adjudication be granted as to each cause

DATED: April 10, 2015

of action for which Plaintiff

has failed to meet her burden.

LEWIS B

SMITH LI,F

By:
Attorneys for Defendant NORT'H COUNTY

TRANSIT DISTRICT

saws
BRISBOIS
SISGAAAD

10
DEFENDANT NORTH COUNTY TRANSIT DISTRICT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION