Case Number: BC576152??? Hearing Date: February 21, 2017??? Dept: 51

Defendant County of Los Angeles?s Request for Evidence Code ? 402 Hearing Re Permissible Scope and Time Frame of Events for Trial is DENIED.

This is a disability discrimination case involving a claim of pretext. It is based on two instances of alleged ?failure to promote? Orozco to a DPO 1 position. First, plaintiff took a DPO 1 examination on March 8, 2013, and was not promoted. (Complaint, ? 5(d)). Second, plaintiff took a DPO 1 examination on November 6, 2014, and was not promoted. (Complaint, ? 5(e)). The second alleged failure to promote occurred no later than the February 12, 2015, right to sue letter. (Complaint, ? 7(b)). (The complaint attached to the right to sue letter alleges that the failure occurred on January 15, 2015.)

Defendant will offer reasons for these denials of promotion. Those reasons appear to include, at least for the second alleged failure to promote, that Orozco had sustained in 2009 a felony reckless driving charge (bargained down from a drunk driving charge). As to the first alleged failure to promote, the County?s reason may be that Orozco was on ?light duty.?

Whatever the reasons that the County is offering for the non-promotions in 2013 through early 2015, Orozco apparently believes that they were a pretext for denying him promotion based on his past disability. He further claims damages that include economic and non-economic loss. As the Court understands it, this is what this trial will be about: defendant?s reasons for the non-promotion, plaintiff?s claims of pretext, and plaintiff?s claims of damages caused by the alleged disability discrimination.

All of this Court?s evidentiary decisions at trial will be made with regard to each piece of evidence?s admissibility related to these claims.

In the Section 402 request, the County cites no particular pieces of evidence, nor even categories of evidence. Instead, it briefs what looks like a summary adjudication motion, demurrer (or, perhaps, an opposition to a motion to amend the complaint) as to a claim of failure to promote in 2016. See Request at 3-7 (arguing that an affirmative defense based on the statute of limitations, plaintiff?s alleged failure to exhaust remedies, and the relation-back doctrine applicable to amending complaints, all preclude a FEHA claim based on 2016 conduct). One problem with this briefing is that this is not the summary adjudication phase of the case. But, more obviously, there is no such claim in this case to summarily adjudicate. As the County argues, such a new claim would have to be pursued after a new right-to-sue letter and raised in ?a separate lawsuit.? (Request at 7.) Even if it were proper to make a summary adjudication motion in limine (which it is not), the County is asking the Court to adjudicate a claim not at issue. As a functional matter, this is an improper attempt at obtaining a ruling that would serve as claim preclusion if a future lawsuit is brought.

In limine rulings, or a Section 402 motion (which is better brought as a request within a motion in limine, rather than filed, as this one was, after the motions in limine tentative rulings were posted) are generally directed at excluding (or sometimes admitting) evidence, not at adjudicating claims. But, as with the County?s motions in limine F and I ? which essentially asked the Court to exclude evidence not relevant to the cause of action being tried without divulging any particular piece of evidence, or category of evidence, that the County wished to have excluded ? the Court remains completely in the dark as to any piece of evidence that the County wishes to exclude. There is no comprehensible reason articulated for a Section 402 hearing. The Court is not going to require plaintiff to call witnesses for a pretrial hearing, delay trial, and then require plaintiff to recall those witnesses at trial.

The County?s conclusion to its Request ? asking the Court to exclude ?evidence of *any* conduct occurring after March 20, 2015? (emphasis added) ? does not follow from its argument. The Court has no idea what evidence, if any, from after that date might be offered, and some might be relevant. Plaintiff almost necessarily will be offering damages evidence from past that date, because lost wages and non-economic damages are at issue. There may be a statement from a witness made after that date that is relevant. There in principle may even be evidence from after that date that *helps* the defendant with its case by showing that the County?s reasons are not pretextual.

As the Court repeatedly stated at the February 15, 2017, Final Status Conference, the Court continues to suspect that there is some particular piece of evidence (or perhaps category of evidence) that is hotly in dispute, and that has spawned Motions in Limine F and I, as well as this irregular Section 402 Request. Evidence in a case like this comes in the form of (1) witness testimony and (2) documents. The Court spent about a half an hour at the Final Status Conference trying to get either party to articulate particular evidence that is in dispute but did not learn of any particular evidence. Any evidence offered may be objected to at trial and the Court will rule accordingly at that time.