in the united states district court central district of ...€¦ · the following councilmembers:...

1 [PROPOSED] FINAL PRETRIAL CONFERENCE ORDER

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IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EDMUND SOTELO, Plaintiff, vs. CITY OF OXNARD, Defendant.

Case No.: CV 13-6039 PJW [Assigned to Hon. Judge Patrick Walsh, Courtroom 23] Complaint Filed: August 16, 2013 FAC Filed: September 25, 2013 SAC Filed: November 12, 2013 [PROPOSED] FINAL PRETRIAL CONFERENCE ORDER Pre-Trial Conference: Date: May 11, 2015 Time: 12:00 p.m. Ctrm: 23 (Spring St.)

Following pretrial proceedings, pursuant to Fed. R. Civ. P.16, and L.R.16-7,

the Court in the above-captioned case hereby enters the following Pretrial

Conference Order:

1. The parties are:

• Plaintiff Edmund Sotelo

• Defendant City of Oxnard.

Case 2:13-cv-06039-PJW Document 107 Filed 05/18/15 of 38 Page ID #:1954


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Each of these parties has been served and has appeared. All other parties

named in the pleadings and not identified in the preceding paragraph are now

dismissed.

The pleadings which raise the issues are: Plaintiff’s Second Amended

Complaint (Dkt. 15) and Defendant’s Answer to Second Amended Complaint

(Dkt. 23).

2. Federal jurisdiction and venue are invoked pursuant to the provisions

of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 -

specifically 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1391. The Court has

supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiff’s California

state law claims. The facts requisite to federal jurisdiction are admitted. Venue is

proper in the Central District of California because the alleged conduct occurred

within said district.

3. The trial is estimated to take 6-7 trial days, not including jury

selection.

4. Trial is to be a jury trial and the verdict must be unanimous. Trial

counsel for Plaintiff shall be Bill H. Seki and Andrew C. Pongracz of Seki,

Nishimura & Watase, LLP. Trial counsel for Defendant shall be Melanie L.

Chaney, Hengameh S. Safaei, and Jolina A. Abrena of Liebert Cassidy Whitmore.

The parties previously filed (a) proposed jury instructions as required by L.R. 51-1

and (b) special questions requested to be asked on voir dire. There are five (5)

disputed jury instructions that were filed in a Joint Stipulation Re Disputed Jury

Instructions on April 30, 2015.

5. The following facts are admitted and require no proof:

1) The City of Oxnard operates under a city manager form of

government.



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2) The City Council hires, directly supervises and evaluates the City

Manager’s performance. 3) The City Manager has the authority under the Oxnard City

Charter to hire the Chief of Police.

4) The City Council generally consists of five elected

Councilmembers, one of whom is the City’s directly elected

Mayor.

5) An Oxnard City Councilmember’s term is four years.

6) The Oxnard Mayor’s term is two years.

7) Oxnard City Council elections are generally held once every two

years. The election is usually in November.

8) After the November 2008 election, the City Council consisted of

the following Councilmembers: Tom Holden (Mayor), Andres

Herrera, Dean Maulhardt, Irene Pinkard, and Bryan MacDonald.

9) After the November 2010 election, the City Council consisted of

the following Councilmembers: Tom Holden (Mayor), Irene

Pinkard, Bryan MacDonald, Carmen Ramirez, and Dorina Padilla.

10) After the November 2012 election, the City Council consisted

of the following Councilmembers: Tim Flynn (Mayor), Bryan

MacDonald, Carmen Ramirez, and Dorina Padilla.

11) All decisions of the City Council are made by majority vote

and each Councilmember carries one vote.

12) Plaintiff Edmund Sotelo was hired by the City Council and

served as the City Manager from February 22, 1998 to February

28, 2013.

13) Plaintiff Edmund Sotelo’s initial employment agreement is

Exhibit 1. Plaintiff’s initial employment agreement was entered



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into on January 13, 1998 and was to remain in effect until

terminated by either party.

14) On March 20, 1999, Plaintiff Edmund Sotelo was given a

performance evaluation by the Oxnard City Council.

15) Based on the City Council’s March 20, 1999 performance

evaluation, Plaintiff’s employment agreement was amended on

April 6, 1999. The Amendment to Plaintiff’s employment

agreement is Exhibit 2. The Amendment gave Mr. Sotelo a three-

year contract and was to renew for additional two-year terms until

terminated by the City.

16) In early 2001, the City Council conducted an evaluation of

Plaintiff Edmund Sotelo’s performance as City Manager since

March 1999.

17) Based on the City Council’s evaluation, Plaintiff Edmund

Sotelo was given a new employment contract dated April 4, 2001.

Plaintiff’s April 4, 2001 contract is Exhibit 3. The term of the

agreement is four years.

18) On January 9, 2003, Plaintiff’s employment agreement was

amended to give Plaintiff new retirement and leave benefits. This

amended agreement is Exhibit 4.

19) On April 1, 2003, the City Council conducted an evaluation of

Plaintiff’s performance as City Manager.

20) Based on the City Council’s evaluation, the term of Plaintiff’s

2001 contract (Exhibit 3) was extended for an additional three

years. This amendment to Plaintiff’s Employment Agreement is

Exhibit 5.



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21) In 2007, Plaintiff and the City Council agreed to extend

Plaintiff’s contract for five more years. This amendment to

Plaintiff’s contract is Exhibit 6.

22) The term of Plaintiff’s amended contract was from March 1,

2008 to February 28, 2013. Exhibit 6 was Plaintiff’s final

employment contract with the City of Oxnard.

23) Plaintiff’s 2003 Employment Agreement (Exhibit 4) as

modified by Exhibits 5 and 6, was the operative agreement

between Plaintiff and the City of Oxnard during the alleged events

that gave rise to Plaintiff’s claims against the City.

24) On August 23, 2010, Plaintiff Edmund Sotelo submitted a

written complaint against Mayor Holden with Oxnard Human

Resources. That written complaint is Exhibit 7.

25) On March 13, 2012, Plaintiff submitted an Addendum to

August 23, 2010 written complaint against Mayor Holden with

Oxnard Human Resources. That addendum is Exhibit 8.

26) The City retained an investigator who conducted an

investigation into Plaintiff’s August 23, 2010 complaint and the

March 13, 2012 addendum to the complaint.

27) The performance evaluations of both the City Manager and the

City Attorney were placed on the City Council agenda for the

September 29, 2011 meeting.

28) On January 31, 2012, the Oxnard City Council consisted of

Tom Holden (Mayor), Bryan MacDonald, Irene Pinkard, Carmen

Ramirez and Tim Flynn.

29) On January 31, 2012, the City Council voted 4-0 to place

Plaintiff Edmund Sotelo on paid administrative leave.



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Councilmembers MacDonald, Pinkard, Flynn and Holden voted in

favor of placing Plaintiff on paid administrative leave.

Councilmember Ramirez abstained from the vote.

30) Plaintiff remained on paid administrative leave for the

remainder of his contract term from February 1, 2012 – February

28, 2013.

31) Tom Holden retired from the City Council in December 2012.

32) On December 18, 2012, Mr. Sotelo requested a meeting with

the City Council to discuss renewal of his Employment

Agreement, which was set to expire on its own terms on February

28, 2013.

33) On January 8, 2013, the Oxnard City Council consisted of Tim

Flynn (Mayor), Bryan MacDonald, Carmen Ramirez and Dorina

Padilla. There was a vacant seat.

34) On January 8, 2013 the Oxnard City Council unanimously

decided not to renew Mr. Sotelo’s Employment Agreement.

35) Plaintiff Edmund Sotelo’s Employment Agreement expired on

its own terms on February 28, 2013.

36) Plaintiff’s last annual salary at the City was $292,211.59.

37) The City of Emeryville, California, had a vacant City Manager

position with salary up to $15,000 per month ($180,000 per year);

the application deadline was March 15, 2013.

38) Plaintiff Edmund Sotelo did not apply for the vacant City

Manager position with the City of Emeryville.

39) The County of San Benito, California, had a vacant

Administrative Officer position with salary up to $149,640

(annually); the application deadline was April 12, 2013.



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40) Plaintiff Edmund Sotelo did not apply for the vacant

Administrative Officer position with the County of San Benito.

41) The City of Pacifica, California, had a vacant City Manager

position with salary up to $180,000 per year; the application

deadline was May 31, 2013.


Manager position with the City of Pacifica.

43) The County of Santa Barbara, California, had a vacant

Executive Officer position with salary up to $230,000 per year;

the application deadline was July 12, 2013.

44) Plaintiff Edmund Sotelo did not apply for the vacant Executive

Officer position with the County of Santa Barbara.

45) The City of Monterey, California, had a vacant City Manager

position with a salary range of $200,000 to $235,000 per year; the

application deadline was October 21, 2013.


Manager position with the City of Monterey.

47) The City of Sunnyvale, California, had a vacant City Manager

position with a salary up to $264,000 per year; the application

deadline was November 20, 2013.


Manager position with the City of Sunnyvale.

49) The City of Lynwood, California, had a vacant City Manager

position with a salary up to $ 175,000 per year; the application

deadline was December 6, 2013.


Manager position with the City of Lynwood.



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51) The City of Hollister, California, had a vacant City Manager


deadline was early January 2014.


Manager position with the City of Hollister.

53) The City of San Mateo, California, had a vacant City Manager


deadline was January 24, 2014.


Manager position with the City of San Mateo.

55) The City of Hercules, California, had a vacant City Manager

position with a salary range of $175,000-$220,000 per year; the

application deadline was April 4, 2014.


Manager position with the City of Hercules.

57) The City of Rio Del, California, had a vacant City Manager

position with a salary range of $106,875- $113,384 per year; the

application deadline was April 4, 2014.


Manager position with the City of Rio Del.

59) The City of Saratoga, California, had a vacant City Manager

position with a salary up to $ 200,000 per year; the application

deadline was May 2, 2014.

60) Edmund Sotelo did not apply for the vacant City Manager

position with the City of Saratoga.



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61) The City of San Ramon, California, had a vacant Assistant

City Manager position with a salary range of $121,824- $187,416

per year; the application deadline was May 30, 2014.

62) Edmund Sotelo did not apply for the vacant Assistant City

Manager position with the City of San Ramon.

63) The City of Half Moon Bay, California, had a vacant City

Manager position with a salary up to $17,083.33 per month

($205,000 per year); the application deadline was June 1, 2014.


Manager position with the City of Half Moon Bay.

65) Following his employment by the City of Oxnard, Plaintiff

Edmund Sotelo applied to serve as the City Manager in Hemet,

California


Edmund Sotelo applied to serve as the City Administrator in San

Fernando, California.


Edmund Sotelo applied to serve as the City Manager in Burbank,

California.


Edmund Sotelo applied to serve as the City Manager in Santa

Ana, California.


Edmund Sotelo applied to serve as assistant city manager in

Huntington Beach, California.



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70) Apart from the positions in Hemet, San Fernando, Burbank,

Santa Ana, and Huntington Beach, Mr. Sotelo did not apply for

any other positions or with any other cities.

71) Mr. Sotelo was not offered employment by any city to which

he applied since the end of his employment by the City of Oxnard.

72) Mr. Sotelo has not been employed in any capacity since the

end of his employment by the City of Oxnard. He voluntarily

retired from the CalPERS system as of March 1, 2014.

73) Mr. Sotelo used four separate recruitment firms during his job

search following the end of his employment by the City of

Oxnard.

6. The following facts, though stipulated, shall be without prejudice to

any evidentiary objection: None.

7. Claims and Defenses

Plaintiff

a. Plaintiff plans to pursue the following claims against

Defendant:

1. Retaliation for complaining of unlawful discrimination

(TITLE VII);

2. Violation of California Labor Code section 1102.5

(retaliation)

3. Failure to prevent harassment (FEHA)

4. Retaliation for refusing to engage in illegal conduct

(FEHA)

5. Breach of contract

b. The elements required to establish Plaintiff’s claims are:



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• Retaliation (under Title VII): (1) a protected activity, (2) an

adverse employment action by the employer, and (3) a causal link between the

protected activity and the adverse employment action. Civil Rights Act of 1974, §

704(a), as amended, 42 U.S.C.A. § 2000e–3(a).

• Retaliation (under California Labor Code section 1102.5): (1)

an employer/employee relationship, (2) disclosure of information to a government

agency, (3) Plaintiff’s belief that the information disclosed constituted a violation

of law, (4) an adverse employment action, (5) the disclosure was a contributing

factor in the adverse employment action (6) harm, and (7) the defendant’s conduct

was a substantial factor in causing Plaintiff’s harm. CACI 2730; Labor Code

section 1102.5; Green v Ralee Engineering Co. (1998) 19 Cal. 4th 66.

• Retaliation (under FEHA): (1) a protected activity, (2) an

adverse employment action by the employer, (3) that the protected activity was a

substantial motivating reason in causing the adverse employment action, (4)

causation and (5) damages. Gov. Code section 12940(h); Yanowitz v L’Oreal

USA, Inc. (2005) 36 Cal. 4th 1028.

• Failure to prevent harassment (FEHA) (1) an

employer/employee relationship, (2) harassment/retaliation/discrimination, (3) the

failure to take all reasonable steps to prevent (2, supra), (4) damages, and (5) the

failure to take action was a substantial factor in causing the damages. Gov. Code,

§ 12940(k))

• Breach of Contract: (1) an enforceable contract, (2)

performance by Plaintiff, (3) meeting of the conditions precedent to Defendant’s

performance, (4) non-performance, (5) damages. CACI 303; Acoustics, Inc. v.

Trepte Construction Co. (1971) 14 Cal.App.3d 887.

c. The Key Evidence Plaintiff Intends To Rely On

i. Violation of Title VII



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In January, 2011 Oxnard hired a new chief of police. Mr. Sotelo was

responsible for hiring a new chief of police. The process of selecting a new chief

occurred during the same time Mr. Sotelo was dealing with the illegal demands of

Mayor Tom Holden. After conducting a nationwide hiring search, Mr. Sotelo

wanted to hire Ms. Jeri Williams, then serving in Arizona, who Mr. Sotelo

believed was the most qualified to serve. Ms. Williams is an African American

female.

On the other hand Mayor Holden and members of the city council wanted

Mr. Sotelo to hire a male who was less qualified. Additionally, despite Mr. Sotelo

having the responsibility and authority to hire the chief of police per the City

Charter, Mayor Holden wanted Mr. Sotelo to cede the hiring authority to the

outgoing Chief of Police. Mr. Sotelo exercised his professional judgment to hire

Chief Williams.

Two days after Mr. Sotelo hired Chief Williams, Mayor Holden called a

special meeting of the City Council to consider the discipline or termination of

Mr. Sotelo. While the meeting was canceled at the last minute, it began the

pretextual employment review process the ultimately resulted in Mr. Sotelo’s end

as City Manager.

ii. Violation of Labor Code Section 1102.5

The pattern and practice of harassment and retaliation began in 2009 during

a criminal investigation of the City’s contracting practices. In or around 2009, in

the wake of the City of Bell scandal, The Ventura County District Attorney

opened an investigation into Oxnard and various City officials, including Mayor

Holden, for public corruption and improper contracting with respect to various

public works projects. Mr. Sotelo was interviewed by the Ventura County District

Attorney’s office. Though Oxnard had an official policy of assisting the DA’s

office in their investigation, Mr. Sotelo was constantly threatened and harassed by



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various members of the board for cooperating with the DA’s office. This came in

the form of verbal threats from City Council members and extraordinary improper

meddling in Office of City Manager work by City Council members. This

included not only verbal harassment of Mr. Sotelo but also interference and

questioning of Mr. Sotelo’s subordinates for their cooperation with the DA

investigation. Mr. Sotelo reasonably believed that his statements to the DA

showed various violations of California law.

The harassment continued in 2010 regarding the firing of individuals

implicated in the contracting scandal. In 2010 Mr. Sotelo refused to rehire two

men who had allegedly defrauded Oxnard and otherwise allegedly engaged in

improper, unethical or illegal conduct. Specifically, Mayor Tom Holden and

Mayor Pro Tempore Andreas Hererra demanded that Mr. Sotelo re-hire these men

or be subjected to extraordinary employment reviews by the city council.

Additionally, Mayor Holden demanded Mr. Sotelo use an illegally obtained audio

recording to fire a city contractor who had made allegations of contract

mismanagement against Mayor Holden and the City of Oxnard. Mr. Sotelo

refused this request to engage in illegal activity and was subjected to employment

reviews by the city council as a result. When Mr. Sotelo refused to re-hire

individuals he suspected to have embezzled money from the city and refused to

engage in illegal activity, he was subjected to numerous employee reviews that

were contrary to his contract.

On August 23, 2010 Mr. Sotelo filed a complaint with Oxnard Human

Resources. Mr. Sotelo reasonably believed that the information he reported to

Oxnard Human Resources showed violations of California law.

iii. Failure to Prevent Harassment (FEHA)

Mr. Sotelo promptly reported the harassment he suffered. In August 2010

Mr. Sotelo submitted a written claim of harassment to the Human Resources



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Department. Human Resources hired a reputable outside investigation firm

(Puente Consulting) whose report confirms Mr. Sotelo’s allegations and

documents the outrageous and illegal conduct Mr. Sotelo and other City

employees suffered from Mayor Holden.

Notwithstanding the report confirming Mr. Sotelo’s claims of harassment

and retaliation, nothing was done to reign in Mayor Holden. Further, Oxnard still

conducted a pretextual performance review process that led to Mr. Sotelo being

placed on administrative leave and to his contract not being renewed. Mr.

Sotelo’s performance review process lasted some four months and was riddled

with procedural errors. For example, Mayor Holden refused to recuse himself

from the process and Oxnard did not follow the procedures in Mr. Sotelo’s

contract. By requesting that Oxnard follow the procedures in his employment

contract, affirmatively providing a detailed written self-evaluation and requesting

Mayor Holden recuse himself given his obvious conflict of interest, all things that

he should not have been forced to do, the Mayor and City Attorney Alan

Holmberg painted Mr. Sotelo as an obstructionist during his pretextual

performance review.

The process was a fait accompli to end Mr. Sotelo’s career. The City

Council and City Attorney did nothing to prevent Mayor Holden’s retaliation and

Mr. Sotelo suffered the end of his career as a result.

The council gave Mr. Sotelo a written employment review which was a

pretextual smear on Mr. Sotelo in retaliation for his refusal to engage in illegal

activity and his reporting of the hostile work environment to which he had been

subjected. This review, as conducted, did not comply with Mr. Sotelo’s

employment agreement or the City Charter. Instead, it was an extraordinary

attempt to manufacture grounds to not rehire Mr. Sotelo because he refused to

engage in illegal activities and reported them when witnessed.



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In February 2012 Mr. Sotelo was put on administrative leave and for the

final thirteen months of his contract he was on leave. In February 2013 Mr.

Sotelo’s contract was not renewed and after almost fifteen years on the post Mr.

Sotelo ceased serving as the Oxnard city manager.

iv. Retaliation For Refusing To Engage In Illegal Conduct

(FEHA)

In or around 2009 the Ventura County District Attorney opened an

investigation into Oxnard and various City officials, including Mayor Holden, for

public corruption and improper contracting with respect to various public works

projects. Mr. Sotelo was interviewed by the Ventura County District Attorney’s

office. Though Oxnard had an official policy of assisting the DA’s office in their

investigation, Mr. Sotelo was constantly threatened and harassed by various

members of the board for cooperating with the DA’s office. This came in the

form of verbal threats from City Council members and extraordinary improper

meddling in Office of City Manager work by City Council members. This

included not only verbal harassment of Mr. Sotelo but also interference and

questioning of Mr. Sotelo’s subordinates for their cooperation with the DA

investigation.

The harassment continued in 2010 regarding the firing of individuals

implicated in the contracting scandal. In 2010 Mr. Sotelo refused to rehire two

men who had allegedly defrauded Oxnard and otherwise allegedly engaged in

improper, unethical or illegal conduct. Specifically, Mayor Tom Holden and

Mayor Pro Tempore Andreas Hererra demanded that Mr. Sotelo re-hire these men

or be subjected to extraordinary employment reviews by the city council.

Additionally, Mayor Holden demanded Mr. Sotelo use an illegally obtained

audio recording to fire a city contractor who had made allegations of contract

mismanagement against Mayor Holden and the City of Oxnard. Mr. Sotelo



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refused this request to engage in illegal activity and was subjected to employment

reviews by the city council as a result. When Mr. Sotelo refused to re-hire

individuals he suspected to have embezzled money from the city and refused to

engage in illegal activity, he was subjected to numerous employee reviews that

were contrary to his contract.

v. Breach of Contract

Mr. Sotelo had an employment contract with Oxnard. In the contract there

is a specific employment review process that is supposed to be followed. Further,

in every California contract there is an implied covenant of good faith and fair

dealing. The performance review process that ultimately resulted in Mr. Sotelo

being placed on leave and the non-renewal of his contract was in violation of the

express terms of the contract. The conducting of the performance review was not

made in good faith and was pretextual effort to retaliate against Mr. Sotelo.

Oxnard breached its contract with Mr. Sotelo and he suffered terribly as a direct

and proximate result thereof.

Defendant

a) Defendant plans to pursue the following affirmative defenses:

Second Affirmative Defense: Statute of Limitations

Third Affirmative Defense: Laches

Sixth Affirmative Defense: Unclean Hands

Seventh Affirmative Defense: Compliance with Law

Eighth Affirmative Defense: Reasonable Care

Fourteenth Affirmative Defense: Failure to Mitigate

Eighteenth Affirmative Defense: Lack of Causation

Nineteenth Affirmative Defense: Legitimate Business Reason

Twentieth Affirmative Defense: Good Faith

Twenty-Second Affirmative Defense: Non-Retaliatory Motive



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Twenty-Third Affirmative Defense: Substantial Performance

Twenty-Fourth Affirmative Defense: Express Terms of Contract

Twenty-Fifth Affirmative Defense: Payment in Full

Twenty-Sixth Affirmative Defense: Unjust Enrichment

A. Defendant’s Second Affirmative Defense – Statute of

Limitations

i. Elements

To preserve a claim under Title VII, an employee must submit a charge of

discrimination to the EEOC within 180 days of the allegedly unlawful incident, or

within 300 days of the incident if the employee first presented the charge to a state

or local equal opportunity agency. 42 U.S.C. § 2000e-5(e)(1); Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982).

To preserve a claim under FEHA, an aggrieved employee must file a charge

with the DFEH within one year of the alleged unlawful conduct. Cal. Gov. Code,

§ 12965(b).

“Equitable tolling may be applied if, despite all due diligence, a plaintiff is

unable to obtain vital information bearing on the existence of his claim. . . .

[E]quitable tolling does not postpone the statute of limitations until the existence

of a claim is a virtual certainty.” Santa Maria v. Pacific Bell, 202 F3d 1170,

1178-1179 (9th Cir. 2000). “If a reasonable plaintiff would not have known of the

existence of a possible claim within the limitations period, then equitable tolling

will serve to extend the statute of limitations for filing suit until the plaintiff can

gather what information he needs.” Id.; see also Johnson v. Henderson, 314 F.3d

409, 414 (9th Cir. 2002) (doctrine of equitable tolling “focuses on whether there

was excusable delay by the plaintiff). “However, ‘once a claimant retains

counsel, tolling ceases because she has gained the means of knowledge of her

rights and can be charged with constructive knowledge of the law's



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requirements.’” Johnson, supra, 314 F.3d at 414, citing Leorna v. U.S. Dept. of

State, 105 F.3d 548, 550-551 (9th Cir. 1997).

ii. Key Evidence

Plaintiff alleges he was subjected to a “hostile work environment,” he was

“subjected to numerous employment reviews,” he was placed on administrative

leave for the final thirteen months of his contract, and his contract was not

renewed in February 2013. SAC, ¶¶ 31-34. Thus, for a timely Title VII claim as

to the initial attempted performance evaluation on September 29, 2011, Plaintiff

should have filed an administrative charge with the DFEH within 300 days, i.e.,

by July 25, 2012. For a timely Title VII claim as to the last attempted

performance evaluation and the placement on paid administrative leave on

January 31, 2012, Plaintiff should have filed an administrative charge with the

DFEH within 300 days, i.e., by November 26, 2012. However, Plaintiff did not

file his DFEH charge until August 8, 2013, which was nine months too late. The

Court should enter judgment for the City on Plaintiff’s Title VII claim because it

is time-barred.

Further, the non-renewal of Plaintiff’s employment contract does not

constitute an adverse employment action. Plaintiff and the City had mutually

agreed in writing that Plaintiff’s employment contract would expire on February

28, 2013. Plaintiff’s employment therefore ended on February 28, 2013 in

accordance with his written employment contract. Plaintiff cannot show there was

a material change to the expiration date of his employment contract.

All of the alleged conduct, which occurred more than one year before

Plaintiff filed his DFEH charge is time-barred. Cal. Gov. Code, § 12965(b).

Plaintiff filed his DFEH charge on August 8, 2013. Any alleged conduct before

August 8, 2012 is therefore time-barred.

In addition, the doctrine of equitable tolling does not apply to Plaintiff’s



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retaliation claims. Plaintiff made a written complaint to the City’s Human

Resources Department in August 2010, and supplemented it in March 2012.

SAC, ¶ 12. Plaintiff claims that “[f]rom August 2010 until June 2013, the

applicable limitation periods were tolled by virtue of this pending administrative

complaint.” Id. These facts, even if accepted as true, do not show excusable

delay for equitable tolling to apply. Even if equitable tolling doctrine is

applicable, such tolling would have ceased by March 13, 2012 when Plaintiff

supplemented his internal complaint and he had legal counsel who was

representing his interests in this regard. SAC ¶ 12; Leorna, supra, 105 F.3d at

550-551 (tolling ceases when claimant retains counsel because he/she has gained

the means of knowledge of his/her rights and can be charged with constructive

knowledge of the law’s requirements.) Indeed, Plaintiff made a written

supplemental complaint to the City’s Human Resources Department in March

2012. SAC, ¶ 12. Plaintiff’s March 13, 2012 memorandum to Michelle Tellez,

then City Human Resources Director, states, in relevant part:

September 2011 till January 31, 2012 (sic), I was the

subject of acts which further constitute a hostile

workplace and retaliation. Once again, a performance

evaluation for the City Manager was placed on the

Closed Session agenda for September 29, 2011.

Evaluation forms were circulated to the members of the

City Council for them to complete prior to the meeting.

Through my legal counsel, the City Council was notified

that they were once again acting in violation of the terms

of my employment agreement related to the procedures

of conducting of a performance evaluation.

B. Defendant’s Third Affirmative Defense – Laches



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i. Elements

“Laches is an equitable defense that prevents a plaintiff, who with full

knowledge of the facts, acquiesces in a transaction and sleeps upon his rights.”

Danjaq LLC v. Sony Corp., 263 F.3d 942, 951-51 (9th Cir. 2001). “[I]f any part of

the alleged wrongful conduct occurred outside of the limitations period, courts

presume that the plaintiff’s claims are barred by laches.” Miller v. Glenn Miller

Prods., Inc., 454 F.3d 975, 997 (9th Cir. 2006).

ii. Key Evidence

As discussed in Section II(B)(2)(a)-(b), above, Plaintiff’s claims are outside

the statute of limitations period and thus barred by laches.

C. Defendant’s Sixth Affirmative Defense – Unclean

Hands

i. Elements

The “unclean hands” doctrine closes the courthouse door to one “tainted

with inequitableness or bad faith relative to the matter in which he seeks relief,

however improper may have been the behavior of the defendant.” Camp v. Jeffer,

Mangels, Butler & Marmaro, 35 Cal.App.4th 620, 638 (1995). The employee’s

misconduct must “relate directly to the transaction concerning which the

complaint is made, i.e., it must pertain to the very subject matter involved and

affect the equitable relations between the litigants.” Id. at 639.

ii. Key Evidence

During the summer of 2010, the Ventura County District Attorney’s Office

began a public integrity investigation into allegations of corruption by City of

Oxnard officials, including Plaintiff. That investigation resulted in a Public

Integrity Report issued on April 18, 2012 (“DA Report”). Plaintiff’s allegation

that he was subject to adverse employment actions because he somehow

“cooperated” with the Ventura County District Attorney’s investigation is thus



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disingenuous and inaccurate. The DA Report makes clear that Plaintiff was

himself a subject of the investigation. Plaintiff is actually the first person to be

identified in the DA Report to have violated misappropriation and conflict of

interest laws. With respect to Plaintiff, the DA Report states, in relevant part:

City Manager Sotelo took an impermissible personal

loan of city funds in 1998. Because the statute of

limitations for this conduct has expired, the loan having

occurred more than 13 years ago, the law does not

permit prosecution.

In 2003, City Manager Sotelo implemented a retirement

benefit for himself and others that was improper because

under state law only the city council has the legal

authority to set employee salaries and benefits. Because

the statute of limitations has expired and there is

insufficient evidence to prove a criminal violation of

misappropriation or conflict of interest laws, this

conduct cannot be prosecuted.

In addition, the DA Report concluded that Plaintiff was not forthcoming

and cooperative with the investigation. In fact, the DA Report states expressly

that when interviewed, Sotelo made statements that were “demonstrably false.”

Because Plaintiff was himself under investigation by the District Attorney’s

Office, and because he made statements to investigators that were “demonstrably

false,” Plaintiff’s contention that he was voluntarily “cooperating” with the

District Attorney’s investigation, is inaccurate and “tainted with bad faith.”



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D. Defendant’s Seventh Affirmative Defense –

Compliance with Law

i. Elements At all times, the City acted in good faith and in conformity with applicable

constitutional laws, state and federal laws, ordinances, regulations and policies,

and Plaintiff’s employment contract. While pled as an affirmative defense,

Plaintiff actually bears the burden of proving that the City engaged in retaliation

and/or violated any applicable laws.

ii. Key Evidence

Plaintiff asserts that the City breached the section of his employment

contract regarding his performance evaluations. Plaintiff asserts the City breached

this section “by not negotiating the terms of their performance review of

[Plaintiff] and instead using the performance review process as a pretext to

retaliate against him.” See, SAC ¶ 80. However, the section of Sotelo’s

employment agreement entitled “Regular Evaluations and Incentive

Compensation” expressly provides for Sotelo to be evaluated on a “regular” basis.

This section provides, in relevant part:

A. City agrees to conduct an evaluation of Sotelo’s

performance on a regular basis . . . . The evaluation

shall be in accordance with specific criteria developed

jointly by City Council and Sotelo. The specific criteria

may be modified by City Council after consultation

with Sotelo. City Council shall provide Sotelo with a

summary written statement of the evaluation of the City

Council and provide an adequate opportunity for Sotelo

to discuss his evaluation with City Council.

B. City Council and Sotelo shall establish such



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written goals and performance objectives for Sotelo

which are mutually determined to be necessary for the

proper operations of the City, for the attainment of the

City Council’s policy objectives, and for the

establishment of relative priorities among those various

goals and objectives.

These evaluation provisions do not provide any specifics regarding the

evaluation process itself. Nor do they identify any specific forms or procedures

that are to be followed in connection with the evaluation process, or how the

parties are to go about jointly developing the criteria or what happens if the parties

cannot agree on the criteria. Plaintiff contends the City failed to comply with this

section when it prepared its preliminary evaluation using an evaluation form that

Plaintiff alleges he did not approve. Plaintiff’s contention lacks merit.

First, the evaluation form that Plaintiff contends he did not approve was a

form that Plaintiff himself created for the City Manager position. Plaintiff admits

that, in approximately 2007, along with former HR Director Lino Corona, he

created a performance evaluation form for the City Manager position. The

evaluation is a five point scale with seven specific categories of performance to be

evaluated.

In addition, from the time he was hired in 1998 through 2007, Plaintiff

received performance evaluations every two to three years. Between 2007 and

2011, there had been two election cycles (one in 2008 and another in 2010). Thus,

by 2011, the majority of the sitting City Council Members (Tim Flynn, Carmen

Ramirez, Irene Pinkard and Bryan MacDonald) had never had the opportunity to

evaluate Plaintiff’s performance. Therefore, in September of 2011, the Council

began the evaluation process for both of their direct reports: the City Manager and

the City Attorney. Both evaluations were placed on the agenda for the September



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29, 2011 meeting. Notably, the City Attorney evaluation was completed by

October 25, 2011.

The evaluation process for Plaintiff, on the other hand, dragged on from

September 2011 through January 2012 because the Council was actively

attempting to “jointly develop” with Plaintiff the criteria for his evaluation.

Plaintiff, however, refused to cooperate in the process. As a result, the City was

thwarted from evaluating Sotelo’s performance as the contract called for.

Eventually, on January 25, 2012, the Council sent a letter to Sotelo with the

subject line “Performance Evaluation/Action Plans.” The letter stated that the

Council had “serious concerns” regarding: 1) communication, 2) trust and 3)

response to performance evaluation documents. In that letter, the Council

requested that Sotelo provide detailed action plans on a list of various

performance items by January 30, 2012 for discussion at the January 31, 2012

Council meeting. These performance items were a compilation of concerns that

each of the Council members had and wanted addressed. Council member Tim

Flynn spoke with Plaintiff about the request for action plans at one of his weekly

meetings with Plaintiff, and Plaintiff agreed in that meeting to respond to the

action plans. Subsequently, however, Plaintiff responded with a letter from his

attorney steadfastly refusing to address the action plans.

On January 31, 2012, then City Attorney, Alan Holmberg wrote a letter to

Plaintiff’s attorney on the Council’s behalf. The letter reminded Plaintiff that he

served as City Manager at the pleasure of the Council. He further stated that the

Council had a contractual right and obligation to evaluate Plaintiff and that

Plaintiff had a contractual obligation to cooperate. In his letter, the City

Attorney specifically warned that Plaintiff’s refusal to respond to the Council’s

request for action plans “may be taken into consideration by the City Council.”

On January 31, 2012, Plaintiff appeared at that Council meeting and stated



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that he was not prepared to respond to the Council’s request for action plans.

Indeed, if there was a breach of the performance evaluation section, it was

Plaintiff who breached by failing to operate in good faith to develop the criteria

jointly with the Council.

The Council members were legitimately frustrated with Plaintiff’s staunch

refusal to participate in the evaluation process. Each Council member was

individually displeased with having an employee who thought himself above

being evaluated by those who hired him. They were also unhappy with his

performance and poor communication with the Council as they expressed in the

January 25, 2012 letter asking for action plans from Plaintiff. Accordingly, on

January 31, 2012, the Council voted to place Plaintiff on paid administrative

leave, pursuant to the express terms of Plaintiff’s contract. The contract states, in

relevant part:

City may order Sotelo on a leave of absence with full

pay and benefits at any time during the term of this

Agreement by action of a majority of the City Council.

Plaintiff remained on administrative leave, with full pay and benefits, for

the final thirteen months of his employment contract with the City.

On January 8, 2013, the new Council, which at that time included one new

member elected in November 2012 (Dorina Padilla) and had a vacant seat, voted

unanimously (4-0) not to renew Sotelo’s contract. Mayor Holden was not a

member of the Council at this time and did not participate in the vote. Those who

voted had the same concerns about Mr. Sotelo’s performance and refusal to be

held accountable and evaluated by the Council. Thereafter, Plaintiff’s contract

with the City expired on its own terms on February 28, 2013. Specifically,

Section A(1) of the Agreement states as follows:

Term – The term of this amended Agreement shall begin



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on March 1, 2008 and shall expire on February 28, 2013.

Plaintiff had no right to be re-hired or to have his contract renewed. The

City was never obligated to renew Plaintiff’s contract after its expiration; nor did

the City need grounds to allow his employment contract to expire by its own

terms. All of Council’s actions were within the City’s legal and contractual rights.

E. Defendant’s Eighth Affirmative Defense –

Reasonable Care

i. Elements

The City exercised reasonable care to avoid any and all alleged wrongful

conduct and to eliminate such when it might occur. Wellpoint Health Networks,

Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 126 (“The employer may

defend by pointing to prompt remedial action reasonably calculated to end the

harassment”).

ii. Key Evidence

The City has express anti-harassment and anti-retaliation policies in place.

Plaintiff was aware of these policies and, in fact, took advantage of the complaint

process when he submitted retaliation complaints against former Mayor Holden.

In addition, the City promptly initiated a third-party independent investigation into

Plaintiff’s claims against Holden, which resulted in the Puente Report that was

issued on September 27, 2012. Shortly thereafter, Holden left the City Council in

November 2012.

F. Defendant’s Fourteenth Affirmative Defense –

Failure to Mitigate

i. Elements

Plaintiff has a duty to use reasonable efforts to mitigate his damages. For

its Fourteenth Affirmative Defense, the City has the burden of proving, by a

preponderance of the evidence, the following elements:



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1. That Plaintiff failed to use reasonable efforts to mitigate damages;

2. The amount by which damages would have been mitigated.

Ninth Circuit Model Civil Jury Instruction, No. 5.3.

In the context of Title VII, a plaintiff seeking back pay and front pay has a

statutory duty to mitigate damages. 42 U.S.C. § 2000e–5(g)(1) (1994); Caudle v.

Bristow Optical Co., Inc., 224 F.3d 1014, 1020 (9th Cir. 2000). See, Cassino v.

Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987) (ADEA front pay

awards, like ADEA backpay awards, must be reduced by the amount plaintiff

could earn using reasonable mitigation efforts).

There is no right to have jury determine appropriate amount of back pay

under Title VII; instead, back pay remains an equitable remedy to be awarded at

the discretion of the district court. Lutz v. Glendale Union High School, 403 F. 3d

1061, 1069 (9th Cir. 2005). Further, back pay is not to be awarded when the

evidence shows a willful loss of earnings such as the failure to remain in the labor

market, refusal to accept substantially equivalent employment, failure diligently to

search for alternative work, or voluntarily quitting alternative employment without

good reason. Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir.

1980); E.E.O.C. v. Monarch Mach. Tool Co., 737 F.2d 1444, 1453 (6th Cir. 1980)

(The backpay period will end if the plaintiff dies, retires, or otherwise is not

eligible for employment or reinstatement.).

As a proxy for reinstatement, front pay is an equitable award within the

purview of the court, not the jury. Traxler v. Multnomah County, 596 F.3d 1007,

1012 (9th Cir. 2010). “[F]ront pay is intended to be temporary in nature. An

award of front pay ‘does not contemplate that a plaintiff will sit idly by and be

compensated for doing nothing.’” Cassino v. Reichhold Chemicals, Inc., 817 F.2d

1338, 1346-1347 (9th Cir. 1987) citing Whittlesey v. Union Carbide Corp., 742

F.2d 724, 728 (2d Cir.1984). “The purpose of front pay ... is to ensure that a



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person who has been discriminated against ... is made whole, not to guarantee

every claimant who cannot mitigate damages by finding comparable work an

annuity to age 70.” Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148,

1157 (9th Cir. 1999) quoting Anastasio v. Schering Corp., 838 F.2d 701, 709 (3rd

Cir.1988).

The district court has the discretion to reduce a discrimination plaintiff's

award by the sums he has received from other sources, including sums received

from third parties. Smith v. Office of Personnel Management, 778 F.2d 258, 263

(5th Cir. 1985) (in Age Discrimination in Employment Act case, court affirmed

the offset of disability compensation as within the discretion of the trial court),

cert. denied, 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 358 (1986); ; EEOC v.

Sandia Corp., 639 F.2d 600, 624–626 (10th Cir. 1980) (reduction of a damage

award to take into account “collateral source benefits” is normally a matter within

the discretion of the district court); Dailey v. Societe Generale, 108 F.3d 451, 460

(2nd Cir.1997) (“[T]he decision whether or not to deduct unemployment benefits

from a Title VII back pay award rests in the sound discretion of the district

court.”); Naton v. Bank of California, 649 F.2d 691, 700 (9th Cir.1981) (holding

that district court had discretion to deduct collateral benefits from an ADEA back

pay award).

Moreover, the collateral source rule is inapplicable when the defendant is

the source of compensation to the plaintiff. McLean v. Runyon, 222 F.3d 1150,

1156-1157 (9th Cir. 2000) (holding district court did not abuse its discretion in

deducting plaintiff’s workers’ compensation benefits, which were paid entirely by

USPS, from his front and backpay damages award and the award made plaintiff

whole, i.e., full recovery for lost wages); Phillips v. Western Co. of N. Am., 953

F.2d 923, 931 (5th Cir. 1992) (“[T]he courts will apply the special defendant-as-

tortfeasor exception to the collateral source rule only when it is clear that the



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government paid for the entire benefit.”); Stratton v. Dep't for the Aging for the

City of New York, 922 F.Supp. 857, 866 (S.D.N.Y.1996) (deducting

unemployment compensation from the plaintiff's back pay award because the

defendant was a government agency and therefore, the City of New York was

effectively the entity, which provided plaintiff's unemployment benefits); See,

Olivas v. United States, 506 F.2d 1158, 1163–1164 (9th Cir.1974) (holding, under

Arizona law, that collateral source rule does not preclude defendant from

obtaining offset of damages for premiums it paid for workers' compensation

benefits received by the plaintiff); Viveros v. Donahoe , 2012 WL 6021667, at *9,

(C.D. Cal.2012) (holding the collateral source rule does not apply, since the

unemployment benefits plaintiff Viveros received were ultimately paid by the

defendant Postal Service).

ii. Key Evidence

Sotelo failed to mitigate his damages. Rather than diligently searching for

gainful employment following the expiration of his contract with the City, Sotelo

voluntarily retired through CalPERS and removed himself from the labor market,

as reflected by his own deposition testimony and discovery admissions. Indeed,

from March 2013 through end of 2014, there were at least 13 job openings for

City Manager and comparable positions in California to which Sotelo did not ever

apply. Since the expiration of his contract, Sotelo applied to only four City

Manager positions, and has not applied for an open position since sometime

before March 2014, when he voluntarily retired through CalPERS. In addition,

Plaintiff’s potential front pay and back pay awards should be offset by the amount

in unemployment insurance benefits, and CalPERS and PARS retirement benefits

that Plaintiff received.

G. Defendant’s Eighteenth Affirmative Defense –

Causation



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i. Elements

In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct.

2517 (2013), the United States Supreme Court established the level of “causal

connection” that a plaintiff must show in a Title VII retaliation case. The

employee must show that his or her protected activity was the “but-for” cause of

the alleged adverse action by the employer. Id. at 2534. The causal link may be

established with direct evidence or with inferences derived from circumstantial

evidence. Jordan v. Clark 847 F.2d 1368, 1376 (9th Cir. 1998). In Clark County

School Dist. v. Breeden 532 U.S. 268 (2001), the United States Supreme Court

indicated that close temporal proximity alone may be sufficient to establish a

prima facie causal connection. Id. at 273-74.) Although demonstrating causality

is not always dependent on temporal proximity, employers may raise the lack of

temporal proximity to argue that the plaintiff failed to establish the causality

element of his/her prima facie retaliation claim. Porter v. California Dept. of

Corrections 419 F.3d 885, 896, fn. 6 (9th Cir. 2005).

In Breeden, the Supreme Court appeared to accept the lower court’s

definition of temporal proximity as “very close” timing between protected activity

and adverse action. Breeden, supra, 532 U.S. at 273. In that case, the Court

concluded that the plaintiff failed to establish causality based on temporal

proximity because the adverse action was taken 20 months after the protected

activity. Id.

ii. Key Evidence

If Plaintiff suffered an adverse action at all, it was not until January 31,

2012 when he was placed on administrative leave. This decision was made by the

entire City Council and was made approximately eighteen months after Plaintiff

submitted his initial retaliation complaint about Holden. Therefore, Plaintiff

cannot show sufficient temporal proximity to establish causation.



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Also, importantly, by the terms of Plaintiff’s employment contract, he could

not be placed on paid administrative leave without a vote of the majority of the

Council. Holden, who Plaintiff claims had retaliatory motives against him, was

not the only member of the Council who voted to place him on administrative

leave. Ultimately, four council members voted for administrative leave and one

member abstained. There is no evidence that any Council member had any

retaliatory motive against him. Therefore, Plaintiff cannot show retaliatory

motive against him on the part of the Council as a whole. Accordingly, Plaintiff

cannot establish a prima facie case for retaliation.

H. Defendant’s Nineteenth, Twentieth and Twenty-

Second Affirmative Defenses –Good Faith,

Legitimate, and Non Retaliatory Business Reason

i. Elements

If a plaintiff makes a prima facie case for retaliatory motive, the burden

switches to the employer to offer a legitimate, nonretaliatory reason for the

adverse employment action. Yanowitz, 36 Cal.4th at 1042; Rodriguez, 960

F.Supp. at 230; see Rebel Van Lines v. City of Compton, 663 F.Supp. 786, 790

(C.D. Cal. 1987). If the employer produces such a reason, the burden then shifts

back to the plaintiff to produce substantial evidence that the reasons were actually

pretextual. McDonnell Douglas Corp. v. Green 411 U.S. 792, 802-804 (1973).

ii. Key Evidence

Even assuming that Sotelo is able to establish a prima facie case of

retaliation – which he cannot – the City Council had legitimate non-retaliatory

business reasons for placing Plaintiff’s evaluation on the agenda between

September 2011 and January 2012, placing Plaintiff on paid administrative leave;

and declining to extend the terms of Plaintiff’s employment contract.

First, the Council members reviewed Plaintiff’s contract and properly



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determined that the contract called for regular evaluations. They also determined

that Plaintiff had not been evaluated in the last several years. As a result, they

sought to evaluate his performance in September 2011. As discussed above, his

evaluation came up over the next several meetings as the Council was trying to

work out with Plaintiff the form for his evaluation. This is supported by various

correspondence with Plaintiff’s counsel wherein Plaintiff asserted that he did not

agree with the form the Council intended to use for his evaluation.

As a result of Plaintiff’s tactics to avoid being evaluated, Sotelo’s

performance evaluation was agendized numerous times from September 2011 to

January 2012 – all to no avail. Ultimately, they were unable to agree on the form.

This stalemate left the Council without recourse to allow them to evaluate Plaintiff

in accordance with the contract.

Second, the Council’s decision to place Plaintiff on administrative leave

was made based on Plaintiff’s performance and precisely because Plaintiff was

refusing to cooperate with his performance evaluation process. This is evidenced

in the City Council’s January 25, 2012 letter to Plaintiff which stated that the

Council has “serious concerns” regarding: 1) communication, 2) trust and 3)

response to performance evaluation documents. In that letter, the Council

requested that Plaintiff provide “detailed action plans” on a list of performance

items by January 30, 2012 for discussion at the January 31, 2012 Council meeting.

Plaintiff refused to respond to the Council’s request for action plans. As a

result, and as evidenced by Holmberg’s January 31, 2012 letter, the Council were

forced to make a decision about how to deal with an employee who refused to be

evaluated. The combination of Plaintiff’s performance issues and his refusal to

cooperate with the performance evaluation process led the Council to place him

on administrative leave, as it had a right to do under the employment contract.

There is no evidence that any Council member had any retaliatory motive against



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Plaintiff. Therefore, Plaintiff cannot show that the Council as a whole, which is

responsible for making these employment decisions, took these actions as a

pretext for retaliatory motive against him.

Third, Plaintiff’s employment contract expired by its own terms on

February 28, 2013. Plaintiff had no legal right to renewal and the City was under

no legal obligation to re-hire Sotelo following the expiration of his contract. No

reason is required for the City to allow the contract to expire. Nevertheless,

because there was no obligation to re-hire Plaintiff and, given the past issues,

including his performance and failure to cooperate with the performance

evaluation process, the Council determined it was time for a change and let the

contract expire. All four members of the Council at that time voted not to renew

the contract. Holden was not on the Council when the decision not to renew was

made. There is no evidence whatsoever that any of the individual Council

members who made this decision had any retaliatory animus towards Plaintiff.

I. Defendant’s Twenty-Third, Twenty-Fourth, and

Twenty-Fifth Affirmative Defenses – Substantial

Performance, Express Terms of Contract, and

Payment in Full

i. Elements

To be entitled to damages for breach of contract, a plaintiff must plead and

prove the following elements: (1) the existence of a contract, (2) plaintiff’s

performance or excuse for nonperformance, (3) defendant’s breach, and (4)

resulting damage to the plaintiff.” Reinhardt v. Gemini Motor Transport, 879 F.

Supp.2d 1138, 1143 (E.D. Cal. 2012), citing Oasis West Realty, LLC v. Goldman,

51 Cal.4th 811, 821 (2011).

ii. Key Evidence

Plaintiff has alleged a breach of section 13 of the employment contract



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which is attached to the Second Amended Complaint. SAC, ¶ 80. Plaintiff also

states that “[a]s a direct result of Defendants’ breaches, [he] has been damaged in

an amount to be determined at trial according to proof.” Id., ¶ 81. Plaintiff has

not alleged how the City’s purported breach of Section 13 of the contract --

regarding how his performance reviews would be conducted -- resulted in harm to

Plaintiff. By his own allegations, Plaintiff pleads that he was put on

administrative leave (pursuant to the express terms of his contract) and allowed to

carry out the full term of this contract. SAC, ¶ 33. Accordingly, the City has

substantially performed all of its obligations under the contract and Plaintiff has

admittedly received all he was entitled to under the contract.

J. Defendant’s Twenty-Sixth Affirmative Defense –

Unjust Enrichment

i. Elements

Under the law, one who obtains a benefit which he may not justly retain is

unjustly enriched. See, Branche v. Hetzel, 241 Cal.App.2d 801, 807 (1966).

ii. Key Evidence.

Plaintiff cannot establish that he suffered any injury, damage, loss, or harm

as a result of any failure on the City’s part to prevent harassment or retaliation.

Plaintiff received all the benefits he was entitled to under his contract, which

expired by its own express terms and under which he had no right to be re-hired. 8. In view of the admitted facts and the elements required to establish

the claims, counterclaims and affirmative defenses, the following issues remain to

be tried:

a. Was Plaintiff retaliated against within the meaning of Title VII

of the Civil Rights Act? If so, what are Plaintiff’s damages?



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b. Was Plaintiff retaliated against within the meaning of

California Labor Code section 1102.5? If so, what are

Plaintiff’s damages?

c. Was Plaintiff retaliated against within the meaning of the

California Fair Employment and Housing Act? If so, what are

Plaintiff’s damages?

d. Did the City fail to prevent retaliation within the meaning of

the California Fair Employment and Housing Act? If so, what

are Plaintiff’s damages.

e. Did the City breach the employment contract between Plaintiff

and the City? If so, what are Plaintiff’s damages?

9. All discovery is complete.

10. All disclosures under F. R. Civ. P. 26(a)(3) have been made. An

Amended Joint Exhibit List has been filed as required by L.R. 16-6.1. Unless all

parties agree that an exhibit shall be withdrawn, all exhibits will be admitted

without objection at trial, except those exhibits listed below:

Plaintiff objects to Exhibit Nos. 96, 99-141. The objections and

grounds are:

Exhibit 96: FRE 403, 404, 407, 801, 802, and 1003.

Exhibits 99-101: Collateral Source Rule, FRE 403.

Exhibits 102-104: FRE 401, 402, 403, 701, 801, 802.

Exhibits 105-129: FRE 401, 403, and Privacy.

Exhibits 130-140: Collateral Source Rule, FRE 403.

Exhibit 141: FRCP 26 (not disclosed); FRE 401, 403,

801 et seq. and 901 et seq.

Defendant objects to Exhibit Nos. 12, 30, 39 and 42. The objections

and grounds therefor are:



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Exhibit 12: On April 16, 2015, the Court granted the

City’s motion in limine to exclude this evidence on the

ground that it is irrelevant and unduly prejudicial. Fed.

R. Evid. 402, 403.

Exhibit 30: Attorney-client privilege and attorney work

product. Fed. R. Evid. 501, 502. Irrelevant and hearsay.

Fed. R. Evid. 402, 802.

Exhibit No. 39. Irrelevant, hearsay, and attorney-client

privilege. Fed. R. Evid. 402, 501, 502, 802.

Exhibit 42: This DVD has not been produced in

discovery (Fed. R. Civ. P. 26). The City asserts that no

such DVD exists. It is improper to identify an exhibit

that does not exist.

11. An Amended Joint Witness List has been filed with the Court.

a. Only the witnesses identified in the lists will be permitted to

testify (other than solely for impeachment).

b. Each party intending to present evidence by way of deposition

testimony has marked such depositions in accordance with

L.R. 16-2.7. For this purpose, the following depositions shall

be lodged with the Clerk as required by L.R. 32-1: Timothy

Flynn (Volumes 1 and 2); and Matthew Winegar.

12. The following law and motion matters and motions in limine, and no

others, are pending or contemplated: The City’s Motion for Judgment as a Matter

of Law pursuant to F.R.Civ.P. 50.

13. The trial will not be bifurcated.

14. The foregoing admissions having been made by the parties, and the

parties having specified the foregoing issues remaining to be litigated, this Final



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Pretrial Conference Order shall supersede the pleadings and govern the course of

the trial of this cause, unless modified to prevent manifest injustice.

Dated:_____________________ _________________________________

Hon. Patrick J. Walsh

UNITED STATES DISTRICT JUDGE

05/18/15



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Approved as to form and content:

DATED: May 8, 2015 SEKI, NISHIMURA & WATASE, LLP

/s/ Andrew C Pongracz

By ______________________________ Bill H. Seki Andrew C. Pongracz Counsel for Plaintiff

EDMUND SOTELO

DATED: May 8, 2015 LIEBERT CASSIDY WHITMORE

/s/ Hengameh S. Safaei

By ______________________________ Melanie Chaney

Jolina Abrena Hengameh S. Safaei Counsel for Defendant CITY OF OXNARD


in the united states district court central district of ...€¦ · the following councilmembers:...

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