Case3:13-cv-05671-NC Document1 Filed12/09/13 Page1 of 18

1 Marsha J. Chien, State Bar No. 275238 Christopher Ho, State Bar No. 129845
2 THE LEGAL AID SOCIETY – EMPLOYMENT LAW CENTER
3 180 Montgomery Street, Suite 600 San Francisco, California 94104
4 Telephone: (415) 864-8848 Facsimile: (415) 593-0096
5 mchien@las-elc.org
6 cho@las-elc.org

7 Attorneys for Plaintiff and Petitioner
VICTOR GUERRERO 8

9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11

12 VICTOR GUERRERO,

) Case No.:

)

13 Plaintif f and Petitioner,

) COMPLAINT FOR EMPLOYMENT

) DISCRIMINATION; PETITION FOR

14

) WRITS OF MANDATE

v.

)

15

)

) [JURY TRIAL DEMANDED]

16 CALIFORNIA DEPARTMENT OF

)

CORRECTIONS AND REHABILITATION; )

17 STATE PERSONNEL BOARD,

)

)

18 Defendants

and Respondents.

)

)

19

20 NATURE OF THIS ACTION
21 1. This is an action for relief from employment discrimination in violation of Title VII
22 of the Civil Rights Act of 1964, the Fourteenth Amendment of the United States Constitution,
23 the California Fair Employment and Housing Act (“FEHA”), California Government Code §
24 11135, and California Constitution Art. 1, § 7.
25 2. This is also a petition for relief from an administrative action pursuant to Sections
26 1094.5 and 1085 of the California Civil Code of Procedure.
27 3. Plaintiff and Petitioner VICTOR GUERRERO alleges that the decision of
28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 1

Case3:13-cv-05671-NC Document1 Filed12/09/13 Page2 of 18

1 Defendants and Respondents CALIFORNIA DEPARTMENT OF CORRECTIONS AND

2 REHABILITATION (“CDCR”) and STATE PERSONNEL BOARD (“SPB”) (collectively,

3 “Defendants”) to disqualify GUERRERO from eligibility for a Correctional Officer position

4 unlawfully discriminated against him on the basis of his national origin and ancestry, and that

5 Defendants’ policies, practices, and decisions have a disparate impact upon Latino/a applicants

6 for the position of Correctional Officer.

7

4. Plaintiff GUERRERO further alleges that Defendants’ disqualification of his

8 application for a Correctional Officer position was unlawful in that it violated Title VII, the

9 FEHA, Cal. Gov. Code § 11135, and his rights under the United States and California

10 Constitutions, and additionally because, as applied, the regulation, 2 Cal. Code of Reg. § 172

11 (also referred to herein as “State Personnel Board Rule 172” or “SPB Rule 172”), under which

12 he was disqualified represents an unlawful expansion of its enabling statute.

13

5. Plaintiff GUERRERO seeks injunctive and declaratory relief, compensatory, and

14 punitive damages, and his reasonable attorneys’ fees and costs as remedies for Defendants’

15 violations of his rights.

16

JURISDICTION AND VENUE

17

6. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1337. This

18 action is authorized and instituted pursuant to Section 706(f)(3) of Title VII of the Civil Rights

19 Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e-5(f)(3); and Section 1979 of the

20 Revised Statutes of the United States, as amended (Section 1983), 42 U.S.C. § 1983.

21

7. This Court has supplemental jurisdiction over the related state law claims pursuant

22 to 28 U.S.C. § 1367(a) because those claims form part of the same case or controversy under

23 Article III of the United States Constitution. Plaintiff’s state law claims share all common

24 operative facts with his federal law claims, and the parties are identical. Resolving Plaintiff’s

25 federal and state claims in a single action serves the interests of judicial economy, convenience,

26 consistency, and fairness to the parties.

27

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 2

Case3:13-cv-05671-NC Document1 Filed12/09/13 Page3 of 18

1

8. But for the Defendants’ employment practices alleged to be unlawful, Plaintiff

2 would have been eligible for employment in California correctional facilities within this judicial

3 district. Venue is therefore proper.

4

INTRADISTRICT ASSIGNMENT

5

9. This action is appropriate for assignment to the San Francisco Division of this Court,

6 as the unlawful practices alleged were and are now preventing Plaintiff from obtaining

7 employment with Defendants as a Correctional Officer in Marin County, which is situated within

8 the San Francisco Division.

9

PARTIES

10

10. Plaintiff and Petitioner GUERRERO is a citizen of the United States and a resident

11 of Stockton, California. Plaintiff GUERRERO is of Latino national origin. He is studying for

12 an associate’s degree in Criminal Justice and Correctional Science at San Joaquin Delta College.

13 He expects to receive a Certificate of Correctional Science in December 2013, and to graduate

14 with a double Associates Degree in Applied Science (AAS) in Criminal Justice Systems: Law

15 Enforcement and Correctional Science in the spring of 2014.

16

11. Defendant and Respondent CDCR is an employer within the meaning of Title VII

17 and the FEHA.

18

12. Defendant and Respondent SPB is an employer and a third-party interferer within the

19 meaning of Title VII and the FEHA. Alternatively, SPB is an agent of CDCR and/or engaged in

20 an integrated enterprise with CDCR.

21

13. CDCR is a state entity existing under a charter granted by the Legislature of the

22 State of California and adopted pursuant to the Constitution and laws of the State of California.

23 CDCR operates at least one correctional facility in Marin County.

24

14. SPB was established under the California Constitution and is responsible for

25 overseeing the merit-based, job-related recruitment and selection process for the hiring of

26 California state employees. SPB audits departments for merit system compliance and is

27 empowered to hear appeals from disqualification of candidates for employment in the

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 3

Case3:13-cv-05671-NC Document1 Filed12/09/13 Page4 of 18

1 Correctional Officer position.

2

15. All of the acts and failures to act alleged herein were performed by and/or

3 attributable to all Defendants. Each Defendant participated in, approved, and/or ratified the

4 unlawful acts and omissions by the other Defendants complained of herein. Said acts and failure

5 to act were within the scope of the inherent authority, employment, and/or direction and/or

6 control of the Defendants.

7

STATEMENT OF FACTS

8

16. In August 2011, Plaintiff GUERRERO applied for a job as a Correctional Officer

9 with CDCR. As part of the application process, Plaintiff GUERRERO was required to complete

10 a written examination and a physical agility test, and to submit to a background investigation.

11 Plaintiff GUERRERO passed the written and physical examinations.

12

17. As part of the background investigation, Plaintiff GUERRERO filled out a

13 background questionnaire. Question #75 of the questionnaire asked whether the applicant “had

14 or used a social security number other than the one you used on this questionnaire.”

15

18. Plaintiff GUERRERO truthfully answered “yes” to Question #75. He submitted an

16 addendum explaining that he was brought to the United States unlawfully in or around 1990

17 when he was approximately 11 years old and that, when he was approximately 15 years old, he

18 started working to support the family and was provided a Social Security number (“SSN”). His

19 addendum also stated that he used the SSN until March 2007, when he obtained his own SSN.

20

19. In October 2011, Plaintiff GUERRERO participated in CDCR’s Pre-Investigatory

21 Interview. At that time, Plaintiff GUERRERO further explained to the background investigator

22 inter alia the following: (a) he was given an SSN so he could start working at a place where a

23 family friend worked when he was approximately 15 years old; (b) he did not learn he was

24 undocumented and that the SSN was not his own until he was 17 years old; (c) he used the SSN

25 to obtain work, but paid all required taxes from 1997 to 2007 using an Individual Taxpayer

26 Identification Number (“ITIN”), which is an identification number issued by the Internal

27 Revenue Service to persons who are not eligible for an SSN for tax reporting purposes; (e) he

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
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1 became a legal permanent resident of the United States in 2007, was issued his own SSN, and

2 started using his own SSN to file for taxes that same year and retroactively applied for earned

3 income tax credit paid during the years 2005-2007; and (g) he became a United States citizen in

4 2010.

5

20. On or about January 27, 2012, CDCR sent Plaintiff GUERRERO a letter informing

6 him that he was being removed from the list of eligible candidates for the Correctional Officer

7 position.

8

21. In its letter, CDCR referred to incidents relating to Plaintiff GUERRERO’s prior use

9 of an SSN that was not his own, and to his receipt of an ITIN from the IRS. The letter stated that

10 Plaintiff GUERRERO did not satisfy the requirements of State Personnel Board Rule 172,

11 which, according to the letter, required that “candidates shall possess the general qualifications

12 of integrity, honesty, [and] good judgment”.

13

22. The CDCR letter further stated inter alia that ”you [Plaintiff GUERRERO]

14 committed identity theft for eight years but [sic] utilizing a social security number of a United

15 States citizen causing unknown ramifications for that person by having income reported under

16 their number which they were unaware of”.

17

23. The CDCR letter concluded that this action “shows a lack of honesty, integrity, and

18 good judgment.”, and that Plaintiff GUERRERO’s name would be removed from the list of

19 eligible candidates “in compliance with California Government Code § 18935 and State

20 Personnel Board Rule 172”.

21

24. Plaintiff GUERRERO timely appealed CDCR’s decision to SPB in a letter dated

22 February 22, 2012.

23

25. SPB did not hold a formal evidentiary hearing to adjudicate Plaintiff

24 GUERRERO’s appeal.

25

26. SPB affirmed CDCR's decision on or about August 21, 2012, citing to State

26 Personnel Board Rule 172, and stating inter alia that “[p]eace officers hold a special position of

27 trust and authority and, as such, they are held to a higher standard of conduct than are other

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
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1 employees . . . by displaying a very high degree of integrity honesty, thoroughness, and good

2 judgment.”

3

27. SPB reasoned that Plaintiff GUERRERO’s use of an SSN that did not belong to

4 him, and his use of an ITIN provided by the IRS, demonstrated “a knowingly [sic] and willful

5 disregard of the law” and, thus, “a lack of honesty, integrity, and good judgment.”

6

28. SPB also noted Plaintiff GUERRERO had initially misstated the year in which he

7 received his own SSN, and determined his misstatement “show[s] a lack of thoroughness and

8 accuracy, which are also issues of unsuitability under section 172.”

9

29. In affirming CDCR’s decision, SPB concluded that Plaintiff GUERRERO’s use of

10 an SSN not assigned to him demonstrated “a lack of thoroughness, accuracy, integrity, honesty,

11 and good judgment.”

12

30. SPB did not provide Plaintiff GUERRERO with any information about how or when

13 to appeal its affirmation of CDCR’s decision.

14

31. In 2013, Plaintiff GUERRERO re-applied for a position as a Correctional Officer.

15 On April 22, 2013, Plaintiff GUERRERO completed the background questionnaire where he

16 again truthfully answered that he had at one time used an invented SSN to obtain work.

17

32. On July 22, 2013, Plaintiff GUERRERO again participated in CDCR’s Pre-

18 Investigatory Interview. Plaintiff GUERRERO again truthfully explained the circumstances

19 under which he used the false SSN.

20

33. On or about October 21, 2013, CDCR sent Plaintiff GUERRERO a letter informing

21 him that he was being removed from the list of eligible candidates for the Correctional Officer

22 position.

23

34. Plaintiff GUERRERO is informed and believes and thereon alleges CDCR is still

24 using the same list of eligible candidates to fill positions.

25

35. Plaintiff GUERRERO filed administrative charges of employment discrimination

26 with the U.S. Equal Employment Opportunity Commission and the California Department of

27 Fair Employment and Housing on January 24, 2013, and again on December 4, 2013, with

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
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Case3:13-cv-05671-NC Document1 Filed12/09/13 Page7 of 18

1 respect to the foregoing matters. On December 4, 2013, Plaintiff GUERRERO requested

2 immediate notices of his right to sue thereon, and this action is timely filed.

3

FIRST CLAIM FOR RELIEF

4

National Origin Discrimination in Violation of

Title VII of the Civil Rights Act of 1964, as amended

5

[42 U.S.C. § 2000e-2]

6

36. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 through

7 35, as though fully set forth herein.

8

37. Section 703 of Title VII, 42 U.S.C. § 2000e-2, prohibits employment practices that

9 discriminate against persons on the basis of their national origin.

10

38. Plaintiff GUERRERO is informed and believes and thereon alleges that

11 Defendants’ disqualification of applicants who have previously used an SSN other than their

12 own has an adverse and disproportionate impact upon the ability of Latino/as to qualify for state

13 employment.

14

39. Defendants’ disqualification of applicants for the position of Correctional Officer

15 who have previously used an SSN other than their current SSN is neither manifestly job-related

16 nor consistent with business necessity.

17

40. Less discriminatory alternatives exist to achieve Defendants’ stated business

18 purposes.

19

41. Defendants’ unlawful actions were intentional, willful, malicious and/or done with

20 reckless disregard to Plaintiff GUERRERO’s right to be free from discrimination based on his

21 national origin.

22

42. As a further proximate result of these unlawful acts, Plaintiff GUERRERO has

23 suffered and continues to suffer injury, including emotional injury.

24

43. Plaintiff GUERRERO is entitled to compensatory damages, punitive damages,

25 injunctive and declaratory relief, and his reasonable attorneys’ fees and costs of suit. //
26 //
27 //
28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 7

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1

SECOND CLAIM FOR RELIEF National Origin and Ancestry Discrimination in Violation of

2

California Fair Employment and Housing Act

[Cal. Gov’t Code § 12940]

3 44. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

4 through 43, as though fully set forth herein.

5

45. Under the FEHA, it is unlawful for an employer, on the basis of national origin or

6 ancestry, “to refuse to hire or employ the person or to refuse to select the person for a training

7 program leading to employment … or to discriminate against the person … in terms, conditions

8 or privileges of employment.” Cal. Gov’t Code § 12940(a).

9

46. Defendants’ unlawful actions were intentional, willful, malicious and/or done with

10 reckless disregard to Plaintiff GUERRERO’s right to be free from discrimination based on his

11 national origin.

12

47. Plaintiff GUERRERO is informed and believes and thereon alleges that

13 Defendants’ disqualification of applicants who have previously used an SSN other than their

14 own has an adverse and disproportionate impact upon the ability of Latino/as to qualify for state

15 employment.

16

48. Defendants’ disqualification of applicants for the position of Correctional Officer

17 who have previously used an SSN other than their current SSN is neither manifestly job-related

18 nor consistent with business necessity.

19

49. Defendants violated Plaintiff GUERRERO’s right to be free from discrimination

20 based on his national origin and/or ancestry. In doing so, Defendants acted with malice,

21 oppression, and/or fraud. As a further proximate result of these unlawful acts, Plaintiff

22 GUERRERO has suffered and continues to suffer injury, including emotional injury.

23

50. Plaintiff GUERRERO is entitled to compensatory damages, punitive damages,

24 injunctive and declaratory relief, and his reasonable attorneys’ fees and costs of suit.

25 //

26 //

27 //

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 8

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1

THIRD CLAIM FOR RELIEF National Origin Discrimination in State-Conducted Programs

2

[Cal. Gov’t Code § 11135]

3

51. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

4 through 50, as though fully set forth herein.

5

52. Under California Government Code § 11135, “[n]o person in the State of

6 California shall, on the basis of . . . national origin [or] ethnic group identification . . . be

7 unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to

8 discrimination under, any program or activity that is conducted, operated, or administered by the

9 state or by any state agency, is funded directly by the state, or receives any financial assistance

10 from the state.” Cal. Gov’t Code § 11135(a).

11

53. CDCR and SPB are both state agencies funded directly by the state. CDCR and

12 SPB unlawfully subjected Plaintiff GUERRERO to discrimination based on his national origin.

13 Defendants’ unlawful actions were intentional, willful, malicious and/or done with reckless

14 disregard to Plaintiff GUERRERO’s right to be free from discrimination based on his national

15 origin.

16

54. Plaintiff GUERRERO is informed and believes and thereon alleges that

17 Defendants’ disqualification of applicants who have previously used an SSN other than their

current SSN has an adverse and disproportionate impact upon the ability of Latinos to qualify for 18

state employment. 19

55. Defendants’ disqualification of applicants for the position of Correctional Officer 20

who have previously used an SSN other than their current SSN is neither manifestly job-related 21

nor consistent with business necessity. 22

56. Less discriminatory alternatives exist to achieve Defendants’ stated business 23

purposes. 24

57. As a proximate result of these unlawful acts, Plaintiff GUERRERO was denied the 25

benefits of state employment and has suffered and continues to suffer injury, including emotional 26

injury. 27

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1

58. Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive

2 relief, and his reasonable attorneys’ fees and costs of suit.

3

FOURTH CLAIM FOR RELIEF

4

For Violation of Equal Protection Clause of Fourteenth Amendment of the

United States Constitution

5

[42 U.S.C. § 1983]

6

59. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

7 through 58, as though fully set forth herein.

8

60. Plaintiff GUERRERO has a right to equal protection of the laws which is secured

9 by the Fourteenth Amendment to the United States Constitution.

10

61. By rejecting Plaintiff GUERRERO’s application for a Correctional Officer position

11 due to his prior use of a different Social Security number, Defendants CDCR and SPB, acting

12 under color of state law, unconstitutionally discriminated against Plaintiff GUERRERO

13 compared to similarly situated California applicants to public employment in violation of the

14 Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

15

62. As a proximate result of these unlawful acts, the Plaintiff GUERRERO has suffered

16 and continues to suffer irreparable injury.

17

63. Plaintiff GUERRERO is entitled to relief, including nominal damages, declaratory

18 relief, injunctive relief, and his reasonable attorneys’ fees and costs of suit.

19

FIFTH CLAIM FOR RELIEF

20

For Violation of the Equal Protection Clause

21

of the California Constitution

64. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 22

through 63, as though fully set forth herein. 23

65. Plaintiff GUERRERO has a right to equal protection of the laws which is secured

24

by Article 1, Section 7 of the California Constitution.

25

66. By rejecting Plaintiff GUERRERO’s application for a Correctional Officer position

26

due to his prior use of a different Social Security number, Defendants CDCR and SPB, acting

27

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Case3:13-cv-05671-NC Document1 Filed12/09/13 Page11 of 18

1 under color of state law, unconstitutionally discriminated against Plaintiff GUERRERO

2 compared to similarly situated California applicants to public employment in violation of Article

3 I, Section 7 of the California Constitution.

4

67. As a proximate result of these unlawful acts, the Plaintiff GUERRERO has suffered

5 and continues to suffer irreparable injury.

6

68. Plaintiff GUERRERO is entitled to relief, including nominal damages, declaratory

7 relief, injunctive relief, and his reasonable attorneys’ fees and costs of suit.

8

SIXTH CLAIM FOR RELIEF

For Violation of Due Process Clause of Fourteenth Amendment of the

9

United States Constitution and the California Constitution

[42 U.S.C. § 1983] 10

69. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 11

through 68, as though fully set forth herein. 12

70. Plaintiff GUERRERO has a liberty interest in choosing his field of employment, 13

which is protected against state interference by the Due Process Clause of the Fourteenth 14

Amendment of the United States Constitution and the California Constitution. 15

71. By denying Plaintiff GUERRERO the ability to be considered for the Correctional 16

Officer position and refusing to provide Plaintiff GUERRERO with a formal evidentiary hearing

17 to appeal the CDCR decision, Defendants CDCR and SPB, acting under color of state law,

18 completely deprived Plaintiff GUERRERO of the ability to engage in the profession of

19 Correctional Officer, in violation of the Due Process Clause of the Fourteenth Amendment of the

20 United States Constitution and Article I, Section 7 of the California Constitution.

21 72. As a proximate result of these unlawful acts, Plaintiff GUERRERO suffered and

22 continues to suffer irreparable injury.

23 73. Plaintiff GUERRERO is entitled to relief, including nominal damages, declaratory

24 relief, injunctive relief, and his reasonable attorneys’ fees and costs of suit.

25 SEVENTH CLAIM FOR RELIEF

26

For Violation of Due Process Clause of the California Constitution

27

74. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

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Case3:13-cv-05671-NC Document1 Filed12/09/13 Page12 of 18

1 through 73, as though fully set forth herein.

2

75. Plaintiff GUERRERO has a liberty interest in choosing his field of employment,

3 which is protected against state interference by Article 1, Section 7 of the California

4 Constitution.

5

76. By denying Plaintiff GUERRERO the ability to be considered for the Correctional

6 Officer position and refusing to provide Plaintiff GUERRERO with a formal evidentiary hearing

7 to appeal the CDCR decision, Defendants CDCR and SPB, acting under color of state law,

8 completely deprived Plaintiff GUERRERO of the ability to engage in the profession of

9 Correctional Officer, in violation of Article I, Section 7 of the California Constitution.

10

77. As a proximate result of these unlawful acts, Plaintiff GUERRERO suffered and

11 continues to suffer irreparable injury.

12

78. Plaintiff GUERRERO is entitled to relief, including nominal damages, declaratory

13 relief, injunctive relief, and his reasonable attorneys’ fees and costs of suit.

14

EIGHTH CLAIM FOR RELIEF

15

Petition for Writ of Mandate

For Violation of California Constitutional Requirements for Due Process

16

[Cal. Code Civ. Proc. § 1094.5]

17

79. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

18 through 78, as though fully set forth herein.

19

80. Plaintiff GUERRERO’s eligibility for the Correctional Officer position is a

20 statutorily conferred benefit triggering due process protections. As such, Plaintiff GUERRERO

21 has a due process interest both in fair decision-making and in being treated with respect and

22 dignity.

23

81. Plaintiff GUERRERO petitions this Court for a writ of mandate pursuant to

24 California Code of Civil Procedure § 1094.5. Defendants’ determination to prevent him from

25 being placed on the eligibility list for the Correctional Officer position violated due process and

26 was “a prejudicial abuse of discretion.” See Cal. Code Civ. Proc. § 1094.5(b). By depriving him

27 of this right without a fair hearing, SPB did not proceed in a manner required by law.

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1

82. As a proximate result, Plaintiff GUERRERO suffered and continues to suffer

2 irreparable injury.

3

83. Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive

4 relief, nominal damages, and his reasonable attorneys’ fees and costs of suit.

5

NINTH CLAIM FOR RELIEF

6

Petition for Writ of Mandate

For the Unlawful Expansion of Legislation

7

[Cal. Code Civ. Proc. § 1085]

8

84. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

9 through 83, as though fully set forth herein.

10

85. Plaintiff GUERRERO is interested in and affected by Defendants’ policies and

11 practices as alleged herein.

12

86. Both Defendant CDCR and SPB have a clear, present and ministerial duty to act in

13 a manner consistent with applicable state law and to cease any policies and practices that conflict

14 with state law. Defendants have the ability to perform its duty by complying with state law

15 requirements.

16

87. Defendant SPB engaged in a ministerial duty, a quasi-legislative promulgation of

17 SPB Rule 172 pursuant to California Government Code § 18935.

18

88. Respondent-Defendant SPB’s promulgation of SPB Rule 172 unlawfully expanded

19 the scope of California Government Code § 18935.

20

89. SPB Rule 172 purports to allow the SPB to disqualify Plaintiff GUERRERO from

21 state employment for conduct less severe than the Legislature intended.

22

90. Plaintiff GUERRERO has no plain, speedy and adequate remedy at law in the

23 ordinary course of law. Therefore, he is entitled to a writ of mandate pursuant to California 24 Code of Civil Procedure § 1085 to compel Respondents-Defendants to comply with its statutory 25 duty. 26 Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive relief, and his 27 reasonable attorneys’ fees and costs of suit.

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1

TENTH CLAIM FOR RELIEF Petition for Writ of Mandate

2

For Violation of Federal and State Statutory Anti-Discrimination Laws

[Cal. Code Civ. Proc. § 1094.5]

3 91. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

4 through 91, as though fully set forth herein.

5

92. Plaintiff GUERRERO petitions this Court for a writ of mandate pursuant to

6 California Code of Civil Procedure § 1094.5. Defendants’ determination to decertify him from

7 the eligibility list was “a prejudicial abuse of discretion.” See Cal. Code Civ. Proc. 1094.5(b).

8 Defendants discriminated against Plaintiff GUERRERO in violation of Section 703 of Title VII,

9 42 U.S.C. § 2000e-2; FEHA, Cal. Gov’t Code § 12940(a); the Fourteenth Amendment of the

10 United States Constitution, California Constitution Art. I, § 7, and California Government Code

11 § 11135. As a result, Defendants did not proceed in a manner required by law. Alternatively,

12 Defendants’ reliance on SPB Rule 172 to disqualify Plaintiff GUERRERO was a misapplication

13 of state law.

14

93. As a proximate result of these unlawful acts, Plaintiff GUERRERO suffered and

15 continues to suffer irreparable injury.

16

94. Plaintiff GUERRERO has exhausted all available administrative remedies as set

17 forth above.

18

95. Plaintiff GUERRERO has no plain, speedy, and adequate remedy in the ordinary

19 course of law.

20

96. Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive

21 relief, and his reasonable attorneys’ fees and costs of suit.

22

23

DECLARATORY RELIEF ALLEGATIONS

24

97. Plaintiff incorporates by reference the allegations in Paragraphs 1 through 87, as

25 though fully set forth herein.

26

98. A present and actual controversy exists between Plaintiff GUERRERO and

27 Defendants concerning their rights and respective duties. Plaintiff GUERRERO contends that

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Case3:13-cv-05671-NC Document1 Filed12/09/13 Page15 of 18

1 Defendants violated his rights under Title VII, FEHA, California Government Code § 11135, the

2 Fourteenth Amendment of the United States Constitution, and California Constitution Art. 1, § 7.

3 Plaintiff is informed and believes and thereon alleges that the Defendants deny these allegations.

4 Declaratory relief is therefore necessary and appropriate.

5

99. Plaintiff GUERRERO seeks a judicial declaration of the rights and duties of the

6 respective parties.

7

INJUNCTIVE RELIEF ALLEGATIONS

8

100. Plaintiff incorporates by reference the allegations in Paragraphs 1 through 90, as

9 though fully set forth herein.

10

101. No plain, adequate, or complete remedy at law is available to Plaintiff GUERRERO

11 to redress the wrongs addressed herein.

12

102. If this Court does not grant the injunctive relief sought herein, Plaintiff

13 GUERRERO will be irreparably harmed.

14

PRAYER FOR RELIEF

15

WHEREFORE, Plaintiff prays for relief as follows:

16

1. For a declaration that Defendants’ actions, policies, and practices as alleged herein

17 are unlawful;

18

2. For judgment and issuance of a writ of mandate pursuant to California Code of Civil

19 Procedure § 1085 barring Defendants from disqualifying applicants from state employment based

20 on their prior use of an SSN other than their own;

21

3. For judgment and issuance of a writ of mandate pursuant to California Code of Civil

22 Procedure § 1085 directing Defendants to discontinue their unlawful policy and practice of relying

23 on SPB Rule 172 to disqualify applicants who used an SSN other than their own in the past;

24

4. For judgment and issuance of a writ of mandate pursuant to California Code of Civil

25 Procedure § 1094.5 directing Respondents to set aside their decisions dated August 21, 2012, and

26 October 21, 2013, disqualifying Plaintiff GUERRERO as a candidate for the position of

27 Correctional Officer, and to restore him to eligibility for that position, or to show cause why a writ

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 15

Case3:13-cv-05671-NC Document1 Filed12/09/13 Page16 of 18

1 of administrative mandate to the same effect should not be issued;

2

5. For an order requiring Defendants to notify their personnel, investigators,

3 administrative law judges, and hearing officers about the prevalent use of SSNs other than their

4 own among immigrant workers and the discriminatory impact a policy barring applicants from

5 state employment based on their prior use of an SSN other than their own would have on Latinos.

6

6. For compensatory damages for Plaintiff’s emotional pain and suffering, in an amount

7 to be proven at trial;

8

7. For punitive damages, in an amount to be proven at trial;

9

8. For interest on damages, including pre- and post-judgment interest and an upward

10 adjustment for inflation;

11

9. For an order enjoining Defendants from engaging in the unlawful acts complained of

12 herein;

13

10. For reasonable attorneys’ fees and costs of suit pursuant to 42 U.S.C. § 1988(b), 42

14 U.S.C. § 2000e-5(k), California Government Code § 12965(b), California Code of Civil Procedure

15 §1 021.5, and other laws;

16

11. For such other and further relief as this Court deems just and proper.

17 18 Dated: December 9, 2013 19 20 21

Respectfully submitted,
Marsha J. Chien Christopher Ho
THE LEGAL AID SOCIETY -EMPLOYMENT LAW CENTER

22

23

By: /s/ Marsha Chien _______

MARSHA J. CHIEN

24

25

Attorneys VICTOR

for Plaintiff and Petitioner GUERRERO

26

27

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 16

Case3:13-cv-05671-NC Document1 Filed12/09/13 Page17 of 18

1

DEMAND FOR JURY TRIAL

2

Plaintiff GUERRERO demands a trial by jury for his First and Second Claims for Relief

3 as provided by Rule 38 of the Federal Rules of Civil Procedure.

4 5 Dated: December 9, 2013
6
7

Marsha J. Chien Christopher Ho
THE LEGAL AID SOCIETY -EMPLOYMENT LAW CENTER

8

9

By: /s/ Marsha J. Chien _______ MARSHA J. CHIEN

10

Attorneys

for Plaintiff and Petitioner

11

VICTOR

GUERRERO

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 17

Case3:13-cv-05671-NC Document1 Filed12/09/13 Page18 of 18

1

VERIFICATION

2

I, MARSHA CHIEN, declare:

3

1. I am an attorney at law duly admitted and licensed to practice before all courts of this

4 State.

5

2. I have my professional office at 180 Montgomery Street, Suite 600, San Francisco,

6 California 94104.

7

3. I am one of the attorneys of record for Victor Guerrero, Plaintiff in this action.

8

4. The Plaintiff is absent from the county in which I have my office.

9

5. For that reason, I am making this verification on his behalf.

10

6. I have read the foregoing Petition for Writ of Mandate and Complaint and know the

11 contents thereof.

12

7. The same is true of my own knowledge, except as to those matters which are therein

13 alleged on information and belief and as to those matters I believe them to be true.

14

15

I declare under penalty of perjury under the laws of the State of California that the

16 foregoing is true and correct, and that this verification was executed at San Francisco, California,

17 on December 9, 2013.

18

19

/s/

20

Marsh J. Chien _____________ MARSHA J. CHIEN

21

22

23

24

25

26

27

28 COMPLAINT FOR EMPLOYMENT DISCRIMINATION;
PETITION FOR WRITS OF MANDATE 18

 
 1

2

3

4

5

6

7

8

9

IN THE UNITED STATES DISTRICT COURT

10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11

United States District Court For the Northern District of California

12

13 VICTOR GUERRERO,

14

Plaintiff,

15

v.

16 CALIFORNIA DEPARTMENT OF

17

CORRECTIONS & REHABILITATION; STATE PERSONNEL BOARD; and in

18

their official capacities JEFFREY BEARD, Secretary of the California Department of

19

Corrections and Rehabilitation; SUZANNE AMBROSE, Executive Officer of State

20

Personnel Board; K. CARROLL, Lieutenant; D. SHARP, Sergeant;

21

BARBARA LEASHORE, Hearing Officer; C. HESTER, Lieutenant, V. MAYOL,

22

Lieutenant; S. COX, Lieutenant; V. MYERS, Sergeant,

23

Defendants.

24

/

No. C 13-05671 WHA
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS FEDERAL CLAIMS AND DISMISSING ALL CLAIMS BROUGHT UNDER CALIFORNIA STATE LAW

25

INTRODUCTION

26

In this employment-discrimination action, defendants move to dismiss. For the foregoing

27 reasons, defendants’ motions as to plaintiff’s federal claims are GRANTED IN PART AND DENIED

28 IN PART. On the other hand, plaintiff’s state-law claims are barred by the Eleventh Amendment

and are therefore DISMISSED.

United States District Court For the Northern District of California

1

STATEMENT

2

In or around 1990, plaintiff Victor Guerrero was brought to the United States from

3 Mexico at age eleven. He began working at fifteen, using a false social security number

4 (“SSN”). Two years later in 1997, plaintiff acquired a legitimate Individual Taxpayer

5 Identification Number (“ITIN”) from the Internal Revenue Service (“IRS”) to pay taxes.

6 Plaintiff acquired a legitimate SSN in 2007 once he obtained permanent resident status. He

7 became a United States citizen in 2010.

8

In August 2011, plaintiff applied for a position as a correctional officer with defendant

9 California Department of Corrections and Rehabilitation (“CDCR”). He passed the written

10 examination and physical agility tests and filled out an extensive background questionnaire. The

11 questionnaire asked whether he “had or used a social security number other than the one . . . used

12 on this questionnaire.” He answered, “I found out that my legal status in this country was not

13 very well defined” and therefore did not have an SSN. Accordingly, “I invented a number and

14 used [it] to obtain work” (A.R. 47). A January 2012 letter from CDCR, signed by two

15 individually-named defendants, informed plaintiff that he was not eligible for the position of

16 correctional officer because he had failed to demonstrate “integrity, honesty, [and] good

17 judgment,” as required by State Personnel Board Rule 172. The letter went on to assert, inter

18 alia, that plaintiff had “committed identity theft for eight years [by] utilizing a social security

19 number of a United States citizen causing unknown ramifications for that person by having

20 income reported under their number which they were unaware of” (A.R. 2).

21

Plaintiff appealed to defendant State Personnel Board (“SPB”). In his appeal, plaintiff

22 stated that “[a]t the age of 17, . . . my parents first made me aware that I was an undocumented

23 worker and I also learned that the social security number they had provided me was fictitious”

24 (A.R. 85). This statement that his parents “provided” him with the false SSN contradicted his

25 previous statement to the CDCR.

26

SPB held an “informal hearing” and plaintiff was allowed to clarify any facts in his

27 record to hearing officer defendant Barbara Leashore (Opp. at 9–10, Dkt. No. 43). SPB

28 considered Leashore’s recommendation to affirm CDCR and eventually issued an August 2012

2

United States District Court For the Northern District of California

1 resolution affirming CDCR. SPB’s resolution acknowledged plaintiff’s argument that he did not

2 “steal another’s social security number,” but it concluded that plaintiff had nonetheless shown a

3 “knowing and willful disregard of the law” and therefore demonstrated “a lack of honesty,

4 integrity, and good judgment.” The resolution also accused plaintiff of misstating the year in

5 which he had received his legitimate SSN, and asserted that this misstatement was evidence of

6 “lack of thoroughness and accuracy, which are also issues of unsuitability under [S]ection 172”

7 (A.R. 116).

8

In 2013, plaintiff then re-applied for the correctional officer position with defendant

9 CDCR, but was again notified in October 2013 that he would be removed from the list of eligible

10 candidates. After receiving a right-to-sue letter from the Equal Employment Opportunity

11 Commission “on the foregoing matters,” plaintiff brought this action against SPB (including its

12 individually-named officers in their official capacities) and CDCR (including its individually-

13 named officers in their official capacities) on December 9, 2013 (Sec. Amd. Compl. ¶¶ 3,

14 26–48).

15

The second amended complaint, the operative pleading, alleges three federal claims: (1)

16 disparate impact under Title VII of the Civil Rights Act; (2) violation of the Equal Protection

17 Clause of the Fourteenth Amendment under 42 U.S.C. 1983; and (3) violations of the Due

18 Process Clause of the Fourteenth Amendment under 42 U.S.C. 1983. It also alleges the

19 following California state-law claims: (4) violation of the Fair Employment and Housing Act;

20 (5) violation of Government Code Section 11135; (6) violation of the Equal Protection Clause of

21 the California Constitution; and (7) violation of the Due Process Clause of the California

22 Constitution; and additionally requests writs of mandate for (8) violation of the California Due

23 Process Clause; (9) unlawful expansion of legislation; and (10) violation of state and federal

24 anti-discrimination laws. This order follows full briefing and oral argument.

25

26

27

28

3

United States District Court For the Northern District of California

1

ANALYSIS

2

To survive a motion to dismiss, a pleading must contain sufficient factual matter,

3 accepted as true, to state a claim for relief that is plausible on its face. Lack of a cognizable legal

4 theory or mere conclusory allegations, however, will result in dismissal. Ashcroft v. Iqbal, 556

5 U.S. 662, 663 (2009).

6

CDCR moves to dismiss all federal claims under Rule 12(b)(6). In addition to fully

7 joining CDCR’s motion to dismiss, SPB separately argues that it is entitled to absolute

8 immunity, immunity under the Eleventh Amendment, and that it is not liable under Title VII.

9

1.

ELEVENTH AMENDMENT IMMUNITY.

10

Plaintiff seeks monetary damages against CDCR and SPB under Title VII. He does not,

11 however, seek monetary damages from CRCR or SPB under Section 1983. In addition, he does

12 not seek monetary damages under any theory from any individually-named employee of either

13 CDCR or SPB.

14

SPB claims Eleventh Amendment immunity from plaintiff’s Section 1983 claims for

15 declaratory and injunctive relief. The Eleventh Amendment bars “a citizen from bringing a suit

16 against his own State in federal court.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234,

17 237–38 (1985). Eleventh Amendment immunity extends to actions against state agencies, such

18 as CDCR and SPB, Brown v. California Dep’t. of Corr., 554 F.3d 747, 752 (9th Cir. 2009), as

19 well as to individuals sued in their official state capacities “because the state is the real party in

20 interest,” Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988).

21

Congress, however, can abrogate Eleventh Amendment immunity without the consent of

22 the states if it does so through an unequivocal expression of congressional intent. Fitzpatrick v.

23 Bitzer, 427 U.S. 445, 454 (1976). Relevant to this action, the Supreme Court found that

24 Congress intended to abrogate Eleventh Amendment immunity for Title VII claims; therefore,

25 the Eleventh Amendment does not bar plaintiff from seeking money damages from CDCR or

26 SPB under certain types of Title VII claims. Ibid. On the other hand, the Eleventh Amendment

27 bars plaintiff from seeking money damages from CDCR or SPB under Section 1983. Quern v.

28 Jordan, 440 U.S. 332, 343–45 (1979).

4

United States District Court For the Northern District of California

1

The Eleventh Amendment, however, does not bar actions that only seek prospective

2 relief. Ex Parte Young, 209 U.S. 123 (1908).

3

In determining whether the doctrine of Ex parte Young avoids an

Eleventh Amendment bar to suit, a court need only conduct a

4

straightforward inquiry into whether the complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as

5

prospective.

6 Verizon Md. Inc. v. Pub. Serv. Comm’n. of Md., 535 U.S. 635, 645 (2002) (citations omitted).

7

SPB argues that plaintiff only seeks to contest SPB’s previous adjudication of his appeal

8 and therefore only seeks retrospective relief. This argument is rejected. Plaintiff seeks

9 prospective relief because he still seeks to become a correctional officer. To this end, he re-

10 submitted an application for a correctional officer position with the CDCR, which was denied,

11 and currently has an appeal pending before SPB (Opp. at 12 n.6). SPB’s claim for Eleventh

12 Amendment immunity for plaintiff’s Section 1983 claims is DENIED.

13

2.

EQUAL PROTECTION CLAIM.

14

For its part, CDCR moves to eliminate the Section 1983 equal protection claim. “To

15 state a claim under [Section 1983] for a violation of the Equal Protection Clause of the

16 Fourteenth Amendment[,] a plaintiff must show that the defendants acted with an intent or

17 purpose to discriminate against the plaintiff based upon membership in a protected class.”

18 Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (emphasis added). While

19 discriminatory intent may be proven by direct or circumstantial evidence, unintentional conduct

20 that has a disparate impact on minorities does not violate the Equal Protection Clause.

21 Washington v. Davis, 426 U.S. 229, 239–40 (1976). The complaint alleges that defendants’

22 policy “have caused and will continue to cause the disqualification of Latino and/or all non-

23 native born U.S. citizen applicants as opposed to applicants of other national origins” and their

24 actions were “intentional, willful, malicious, and/or done with reckless disregard . . . .” (Sec.

25 Amd. Compl. ¶¶ 68, 77).

26

It is true that the complaint alleges that defendants intended to discriminate against

27 plaintiff based on his race. This allegation, however, is highly conclusory and insufficient to

28 meet the Iqbal pleading standard. See Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013)

5

United States District Court For the Northern District of California

1 (Iqbal and Twombly apply to Section 1983 claims). Accordingly, CDCR’s motion to dismiss

2 plaintiff’s Section 1983 equal protection claim is GRANTED.

3

3.

SUBSTANTIVE DUE PROCESS CLAIM.

4

In addition, the complaint alleges that defendants violated plaintiff’s substantive due

5 process rights by permanently depriving him of his right to be a correctional officer. The

6 Supreme Court has held that a claim for relief cannot be based on substantive due process where

7 a more specific constitutional provision is applicable. Albright v. Oliver, 510 U.S. 266, 273

8 (1994). In Johnson v. California, 207 F.3d 650, 655–56 (9th Cir. 2000), rev’d on other grounds,

9 543 U.S. 499 (2005), our court of appeals held that “[b]ecause the Equal Protection Clause

10 [claim of racial discrimination] covers the actions challenged in the complaint, [the plaintiff]

11 may not proceed on a substantive due process theory.”

12

So too here. Plaintiff is alleging that defendants’ uniform policy disqualifies a class of

13 persons from employment, whether the class is composed of Latinos or formerly-undocumented

14 workers. This is better adjudicated under equal protection analysis. See, e.g., Wilkins v. County

15 of Alameda, 2012 U.S. Dist. LEXIS 91645, at 11–12 (N.D. Cal. June 28, 2012) (Judge Lucy

16 Koh). Accordingly, CDCR’s motion to dismiss the Section 1983 substantive due process claim

17 is GRANTED.

18

4.

PROCEDURAL DUE PROCESS CLAIM.

19

The complaint also alleges procedural due process violations. It alleges that CDCR

20 reached unfounded conclusions in its rejection letter — for instance, that plaintiff’s false SSN

21 actually belonged to somebody else, that he violated state law by using his false SSN to collect

22 worker’s compensation in Colorado, and that he could have used his ITIN number to qualify for

23 employment (A.R. at 2–3). See also T.D. 8671, 1996-1 C.B. 314.

24

To determine whether plaintiff has been granted adequate procedural protections, three

25 factors are weighed: (1) the protected interest affected; (2) the risk of erroneous deprivation and

26 the value of new or different procedural safeguards; and (3) the interests of the government,

27 including the burden of new or different procedures. Mathews v. Eldridge, 424 U.S. 319, 335

28 (1976).

6

United States District Court For the Northern District of California

1

[B]ecause procedural due process analysis essentially boils down to an

ad hoc balancing inquiry, the law regarding procedural due process

2

claims can rarely be considered clearly established at least in the

absence of closely corresponding factual and legal precedent . . .

3

Indeed, without specific direction from cases applying it, the Mathews

standard is even less amenable to the discovery of clearly established

4

law than . . . other multifactor balancing tests that arise in

constitutional jurisprudence.

5

6 Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 983 (9th Cir. 1998)

7 (citations omitted).

8

At this stage, it is not possible determine, as a matter of law, whether the administrative

9 process used by defendants satisfied the Mathews standard. The issue needs a more complete

10 record. It is possible, for example, that no one was assigned the SSN used by plaintiff and that

11 CDCR erred in so finding. The motion to dismiss the procedural due process claim is DENIED.

12

5. TITLE VII CLAIM.

13

The Title VII claim is brought against all defendants. CDCR moves to dismiss. SPB

14 separately argues that it does not have the necessary employer-employee relationship with

15 plaintiff in order to be liable under Title VII.

16

A. Protected Class.

17

Title VII prohibits employers from discriminating against individuals with respect to

18 compensation, terms, conditions, or privileges of employment on the basis of race, color,

19 religion, sex, or national origin. 42 U.S.C. 2000e-2(a). Unlike the Section 1983 equal protection

20 claim, this order rejects CDCR’s challenge to plaintiff’s Title VII claim. The argument CDCR

21 raises against the Title VII claim is that plaintiff seeks relief based only on immigration status

22 (Br. at 4–5). This is untrue. The Title VII claim is based on a class of Latinos (Sec. Amd.

23 Compl. ¶ 51). Therefore, CDCR’s challenge is rejected.

24

On its own motion, the Court has evaluated whether the dismissal of the Section 1983

25 equal protection claim necessarily results in the dismissal of the Title VII claim. The answer is

26 no. The Section 1983 equal protection claim is dismissed because plaintiff failed to plead intent

27 in more than a conclusory fashion. Title VII disparate impact claims, however, do not include an

28 intent element. Ricci v. DeStefano, 557 U.S. 557, 576–83 (2009).

7

United States District Court For the Northern District of California

1

It is further worth pointing out that several judges in our district have held that a

2 McDonnell-Douglas prima facie showing is an evidentiary standard, not a pleading standard.

3 See Kuang-Bao Ou-Young v. Potter, 2011 U.S. Dist. LEXIS 22, 6–8 (N.D. Cal. Jan. 3, 2011)

4 (Judge Richard Seeborg); Jianjun Xie v. Oakland Unified Sch. Dist., 2013 U.S. Dist. LEXIS

5 29898, at *9–11 (N.D. Cal. Mar. 4, 2013) (Judge Charles Breyer); see also Al-Kidd v. Ashcroft,

6 580 F.3d 949, 974 (9th Cir. 2009) (dicta), rev'd on other grounds sub nom. Ashcroft v. Al-Kidd,

7 131 S. Ct. 2074 (2011). For the foregoing reasons, CDCR’s motion to dismiss the Title VII

8 claim against it is DENIED.

9

B. Employment Relationship.

10

SPB argues that it does not have the necessary employer-employee relationship with

11 plaintiff in order to be liable under Title VII. In response, plaintiff contends that “SPB is a third-

12 party interferer [in an indirect employment relationship with plaintiff] whose actions

13 discriminatorily barred him from employment” (Opp. at 4).

14

This order agrees with SPB. Plaintiff is seeking money from SPB for having done

15 nothing more than performing its state function to review every decision by other state agencies

16 and finding CDCR compliant. It is not plausible on this record to imagine a circumstance in

17 which SPB or its individually-named officials are liable for money damages.

18

It is more plausible that SPB and its individually-named officials should stay in the action

19 in order to facilitate declaratory relief, if any, in favor of plaintiff. SPB, however, states in its

20 supplemental briefing that it will not interfere with a decision by CDCR to hire plaintiff if CDCR

21 is so ordered by the Court or otherwise collaterally attack any court-ordered relief directed at

22 CDCR. Accordingly, SPB’s motion dismiss plaintiff’s Title VII claim against it is GRANTED.

23

6.

ABSOLUTE IMMUNITY.

24

All that remains by way of potential relief against SPB and its employee-defendants sued

25 in their official capacities is prospective relief. Contrary to their arguments, quasi-judicial

26 absolute immunity does not bar SPB and its employee-defendants (sued in their official capacity

27 only) from being sued to challenge one of their decisions as illegal. “In an official-capacity

28

8

United States District Court For the Northern District of California

1 action, [individual defenses, such as absolute immunity] are unavailable.” Ky. v. Graham, 473

2 U.S. 159, 165–67 (1985).

3

In its supplemental briefing, SPB also raises the defense of legislative immunity based on

4 its adoption of SPB Rule 172 (Supp. Br. at 3). Plaintiff, however, does not rely on SPB’s

5 promulgation of SPB Rule 172 in this action. Rather, he claims that SPB’s affirmation of

6 CDCR’s interpretation of Rule 172 is the basis for his claims.

7

SPB’s claim for absolute immunity is DENIED.

8

7.

STATE-LAW CLAIMS.

9

The Supreme Court has held:

10

A federal court's grant of relief against state officials on the basis of

state law, whether prospective or retroactive, does not vindicate the

11

supreme authority of federal law . . . it is difficult to think of a greater

intrusion on state sovereignty than when a federal court instructs state

12

officials on how to conform their conduct to state law. Such a result

conflicts directly with the principles of federalism that underlie the

13

Eleventh Amendment. We conclude that Young . . . [is] inapplicable

in a suit against state officials on the basis of state law.

14

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (emphasis added);

15

Spoklie v. Mont., 411 F.3d 1051, 1060 (9th Cir. 2005) (same). Thus, a federal court cannot grant

16

plaintiff any relief based on his state-law claims because SPB and CDCR do not waive their

17

Eleventh Amendment immunity in this action. There is no supplemental jurisdiction over

18

plaintiff’s state-law claims because 28 U.S.C 1367 “does not abrogate a state’s constitutional

19

immunity under the Eleventh Amendment from suit in federal court.” Rohnert Park Citizens to

20

Enforce CEQA v. Cal. DOT, 2008 U.S. Dist. LEXIS 41004, at *5–6 (N.D. Cal. May 20, 2008)

21

(Judge Thelton Henderson), citing Stanley v. Tr. of Cal. State Univ., 433 F.3d 1129, 1134 (9th

22

Cir. 2006).

23

Because adjudication of plaintiff’s California state-law claims in federal court would

24

contravene the Eleventh Amendment, plaintiff’s state-law claims against all defendants must be

25

DISMISSED. These may be re-filed in state court.

26

8.

JUDICIAL NOTICE.

27

The joint request for judicial notice of the State Personnel Board administrative record

28

and resolution is GRANTED.

9

United States District Court For the Northern District of California

1

CONCLUSION

2

To the extent stated above, defendants’ motions to dismiss are GRANTED IN PART AND

3 DENIED IN PART. Defendants’ motions to dismiss plaintiff’s Section 1983 equal protection and

4 substantive due process claims are GRANTED. SPB’s motion to dismiss plaintiff’s Title VII

5 claim against it is GRANTED. CDCR’s motion to dismiss the Title VII claim, however, is

6 DENIED. Defendants’ motion to dismiss the procedural due process claim is DENIED. Plaintiff’s

7 state-law claims are dismissed without prejudice to re-filing in state court.

8

Plaintiff’s procedural due process and Title VII claims both require a more complete

9 record. To tee this up, defendants shall move for summary judgment on plaintiff’s procedural

10 due process and Title VII claims within 62 CALENDAR DAYS (nine weeks). Both sides may take

11 discovery, effective now, on the issues raised. Afterwards, plaintiff shall have an additional

12 eight weeks in which to take discovery and to file an opposition. Defendants may take further

13 discovery from any declarant in opposition. A reply will be due one week after the opposition.

14 The motion hearing will be set for SEPTEMBER 25, 2014, AT 8:00 A.M.

15

Plaintiff will have until MAY 29, 2014, to file a motion, noticed on the normal 35-day

16 calendar, for leave to amend his Section 1983 equal protection claim. He may also seek leave to

17 re-plead his Title VII claim against SPB. A proposed amended complaint must be appended to

18 this motion. Plaintiff must plead his best case as to these claims for relief. The motion should

19 clearly explain how the amended complaint cures the deficiencies identified herein, and should

20 include as an exhibit a redlined or highlighted version identifying all changes. If such a motion

21 is made and granted, it will end up being on a somewhat separate summary judgment track.

22 IT IS SO ORDERED.
23

24 Dated: May 7, 2014. 25

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

26

27

28

10

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

United States District Court For the Northern District of California

9 VICTOR GUERRERO,

10

Plaintiff,

No. C 13-05671 WHA

11

v.

12 CALIFORNIA DEPARTMENT OF CORRECTIONS

13

AND REHABILITATION; STATE PERSONNEL BOARD; and, in their official capacities,

14

JEFFREY BEARD, Secretary of the California Department of Corrections and Rehabilitation;

15

SUZANNE AMBROSE, Executive Officer of State Personnel Board; K. CARROLL, Lieutenant; D.

16

SHARP, Sergeant; BARBARA LEASHORE, Hearing Officer; C. HESTER, Lieutenant; V.

17

MAYOL, Lieutenant; S. COX, Lieutenant; V. MYERS, Sergeant; JOHN (or JANE) DOES 1-100,

18 all of whose true names are unknown,

ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT AND VACATING HEARING

19

Defendants.

/

20

21

INTRODUCTION

22

In this employment-discrimination action, plaintiff moves for leave to file a third amended

23 complaint. For the reasons stated herein, the motion is GRANTED. The November 20 hearing is

24 hereby VACATED.

25

STATEMENT

26

Prior orders recounted the history of this action so it will not be repeated herein

27 (Dkt. Nos. 52, 104). In short, plaintiff Victor Guerrero, identified as Latino, applied to be a

28 correctional officer with defendant California Department of Corrections and Rehabilitation

(“CDCR”). On his questionnaire, he admitted to previously using a false social security number.

United States District Court For the Northern District of California

1 As a result, he was withheld from the list of eligible candidates, a decision he appealed to

2 defendant State Personnel Board (“SPB”). CDCR’s decision was affirmed by SPB. He then

3 applied again and was withheld again. He commenced this lawsuit in December 2013.

4

A May 2014 order, inter alia, granted CDCR’s motion to dismiss the equal protection

5 claim and granted SPB’s motion to dismiss the Title VII claim. A July 2014 order then denied

6 without prejudice plaintiff’s motion for leave to file a third amended complaint to allow both

7 sides the benefit of discovery. A September 2014 order denied two motions for summary

8 judgment (Dkt. Nos. 52, 79, 104).

9

The operative pleading alleges a procedural due process claim against CDCR and SPB,

10 and a Title VII claim against CDCR. The proposed third amended complaint seeks to add a Title

11 VII claim against SPB and an equal protection claim against CDCR and SPB. Fact discovery

12 closes in January 2015 and trial begins in May 2015.

13

ANALYSIS

14

The original deadline for seeking pleading amendments was in May 2014 (Dkt. No. 40).

15 Plaintiff must thus demonstrate “good cause” for the amendment, pursuant to Rule 16(b).

16 The proposed amendment should be denied if it prejudices the opposing party, is sought in bad

17 faith, produces an undue delay, or is futile. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

18 608 (9th Cir. 1992).

19

1.

GOOD CAUSE.

20

Mr. Guerrero has been diligent in pursuing the proposed claims and there is no evidence

21 of undue delay, prejudice, or bad faith. When Mr. Guerrero commenced this action in December

22 2013, the complaint alleged, inter alia, equal protection and Title VII claims. Those claims (and

23 others) were dismissed in May 2014. On May 29, plaintiff moved for leave to amend those

24 claims. The motion was denied without prejudice and plaintiff was given until September 30 to

25 file a renewed motion so that both sides would have the benefit of some discovery. Mr. Guerrero

26 timely filed the instant motion. Accordingly, this order finds good cause to modify the schedule

27 for the proposed amendment (Dkt. Nos. 1, 52, 79, 85).

28

2

United States District Court For the Northern District of California

1

The central dispute raised herein is whether it would be futile to add a Title VII claim

2 against SPB and/or an equal protection claim against CDCR and SPB. Both proposed claims are

3 addressed below.

4

2. TITLE VII AGAINST SPB.

5

An entity that is not the direct employer of a plaintiff may nevertheless be liable under

6 Title VII if it “interfered with the employee’s relationship” or “had some peculiar control over the

7 employee’s relationship with the direct employer.” Anderson v. Pacific Maritime Association,

8 336 F.3d 924, 931–32 (9th Cir. 2003).

9

In the oft-cited decision, Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1342

10 (D.C. Cir. 1973), a male nurse sued a private nonprofit hospital under Title VII, even though the

11 nurse worked for the patients pursuant to an arrangement whereby patients would request services

12 via a nursing registry. Title VII was read expansively to prohibit unlawful discrimination beyond

13 the confines of “direct employment.” The District of Columbia Circuit stated that because the

14 hospital controlled the premises and blocked access to patients on at least two occasions, it

15 brought itself “within the strictures of Title VII.” Procedurally, however, the trial court erred in

16 sua sponte granting summary judgment for the plaintiff when the defendant had not yet answered

17 the complaint and no oral argument was heard. Id. at 1344.

18

In Anderson, our court of appeals held that a nonprofit association of shipping companies

19 was not liable for discrimination under Title VII. 336 F.3d at 925–27, 932. The nonprofit

20 association had no direct role in resolving grievances and its involvement was “too attenuated” to

21 constitute “interference” with the employment relationship.

22

In his second amended complaint, Mr. Guerrero alleged that question number 75 on

23 CDCR’s questionnaire had a disproportionate impact on Latinos. In May 2014, the Title VII

24 claim against SPB was dismissed because the second amended complaint sought money from

25 SPB for only performing its state function. The Title VII claim against CDCR remains scheduled

26 for trial.

27

Now, the proposed third amended complaint seeks to re-introduce a Title VII claim

28 against SPB, alleging that SPB promulgated the rule used by CDCR to disqualify Mr. Guerrero,

3

United States District Court For the Northern District of California

1 SPB was “directly involved in” CDCR’s selection procedures, and “retained authority over

2 CDCR’s selection process.” SPB also allegedly upheld CDCR’s use of question number 75 to

3 disqualify Mr. Guerrero and allegedly failed to exercise sufficient oversight over CDCR’s

4 employment practices. Mr. Guerrero further argues that complete relief cannot be afforded

5 without joinder of SPB because he seeks, in pertinent part, injunctive relief within the purview of

6 SPB (Third Amd. Compl. ¶¶ 34–35, 38–39, 42–43, 45, 74, 76–78).

7

SPB does not dispute that it was tasked with “enforcing the civil service statutes,”

8 “provid[ing] guidance to state agencies and departments in administering the civil service laws,”

9 “reviewing disciplinary actions,” hearing appeals,” and “review[ing] a particular department’s

10 examination or hiring practices” (Opp. 3–4). SPB instead argues that Mr. Guerrero has not

11 alleged facts showing that SPB is responsible for “every hiring decision” by CDCR.

12

SPB’s narrow view of liability under Title VII is unpersuasive at this juncture. The new

13 allegations suffice to state a Title VII claim against SPB. It, of course, remains to be seen

14 whether this claim would survive trial on the merits. Nevertheless, plaintiff’s motion for leave to

15 add a Title VII claim against SPB is GRANTED.

16

3.

EQUAL PROTECTION.

17

“Plaintiffs may prevail on their equal protection claim by showing that a class that is

18 similarly situated has been treated disparately.” Arizona Dream Act Coalition v. Brewer, 757

19 F.3d 1053, 1063–65 (9th Cir. 2014) (internal quotation marks omitted). When rational basis

20 review applies, the disparate treatment must be “rationally related to a legitimate state interest.”

21 “[A] classification must be upheld against [an] equal protection challenge if there is any

22 reasonably conceivable state of facts that could provide a rational basis for the classification.”

23 Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotation marks omitted). (To be clear, this is

24 not a class action or putative class action. This individual dispute concerns class treatment in the

25 equal protection context.)

26

The equal protection claim in the second amended complaint was dismissed in May 2014,

27 because the allegations therein were highly conclusory. Now, the proposed third amended

28 complaint seeks to re-introduce an equal protection claim after some discovery has been taken.

4

United States District Court For the Northern District of California

1

The third amended complaint alleges that defendants treated individuals who once used a

2 false social security number for the purpose of obtaining and maintaining employment, differently

3 than those similarly situated, without any rational basis. Alternatively, the pleading alleges that

4 defendants treated those who “recently” used a false social security number, differently without

5 any rational basis. The pleading further alleges that defendants’ policy and/or practice of

6 disqualifying individuals who once used a false social security number is not rationally related to

7 a legitimate state interest (Third Amd. Compl. ¶¶ 82–87). Defendants argue that adding an equal

8 protection claim would be futile for two reasons. Neither reason is persuasive.

9

First, defendants argue that Mr. Guerrero’s claim is barred by Engquist v. Oregon

10 Department of Agriculture, 553 U.S. 591, 607 (2008), which held that the “class-of-one” theory

11 of equal protection has no application in the public employment context. In other words,

12 defendants contend that Mr. Guerrero’s claim must be only a class-of-one claim, which

13 necessarily fails. Not so — it would be premature at this juncture to so conclude.

14

In Engquist, the plaintiff alleged that the defendants discriminated against her on the basis

15 of race, sex, and national origin, and she also brought a “class-of-one” claim alleging that she was

16 fired for arbitrary, vindictive, and malicious reasons. At trial, the jury rejected the plaintiff’s

17 claim of discrimination for membership in a suspect class but found in favor of plaintiff on the

18 class-of-one claim. Our court of appeals reversed in part, concluding that the class-of-one theory

19 of equal protection did not extend to the public employment context. The Supreme Court

20 affirmed. Id. at 595–96, 609.

21

Here, however, it is not readily apparent that Mr. Guerrero’s class-based equal protection

22 claim fails. His proposed pleading alleges a class of similarly situated individuals that were

23 allegedly treated disparately without any rational basis. Certainly, these allegations are without

24 prejudice to defendants prevailing at trial on the merits.

25

Second, defendants argue that their actions pass muster under rational basis review.

26 On this point, both sides would benefit from further development of the record and triable issues

27 remain. Accordingly, plaintiff’s motion for leave to add an equal protection claim is GRANTED.

28

5

United States District Court For the Northern District of California

1

CONCLUSION

2

For the reasons stated herein, plaintiff’s motion is GRANTED. Plaintiff shall file the third

3 amended complaint by NOVEMBER 3. Defendants have until NOVEMBER 17, 2014, to file their

4 answers. The November 20 hearing is hereby VACATED. All existing deadlines remain in place,

5 including the May 11, 2015, trial date.

6

7

IT IS SO ORDERED.

8 Dated: October 29, 2014.
9
10

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

11

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6

 
 Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page1 of 20

1 Marsha J. Chien, State Bar No. 275238 Christopher Ho, State Bar No. 129845
2 THE LEGAL AID SOCIETY – EMPLOYMENT LAW CENTER
3 180 Montgomery Street, Suite 600 San Francisco, California 94104
4 Telephone: (415) 864-8848 Facsimile: (415) 593-0096
5 mchien@las-elc.org
cho@las-elc.org 6
7 Attorneys for Plaintiff VICTOR GUERRERO
8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12 VICTOR GUERRERO,

) Case No.: C 13-5671-WHA )

13

Plaintiff,

) THIRD AMENDED COMPLAINT ) FOR EMPLOYMENT

14

v.

) DISCRIMINATION AND ) CONSTITUTIONAL VIOLATIONS

15 CALIFORNIA DEPARTMENT OF

)

CORRECTIONS AND REHABILITATION; )

16 STATE PERSONNEL BOARD; and, in their ) [JURY TRIAL DEMANDED]

official capacities, JEFFREY BEARD,

)

17 Secretary of the California Department of Corrections and Rehabilitation; SUZANNE

) )

18

AMBROSE, Executive Officer of State Personnel Board; K. CARROLL, Lieutenant;

) )

19 D. SHARP, Sergeant; BARBARA LEASHORE, Hearing Officer; C. HESTER,

) )

20

Lieutenant; V. MAYOL, Lieutenant; S. COX, ) Lieutenant; V. MYERS, Sergeant; JOHN (OR )

21

JANE) DOES 1-100, all of whose true names )

are unknown,

)

22

Defendants.

) )

23

) )

24

)

25

26

NATURE OF THIS ACTION

27

1. This is an action for relief from employment discrimination in violation of Title VII

28

1
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1 of the Civil Rights Act of 1964, as amended, and of the Fourteenth Amendment to the United

2 States Constitution as secured by 42 U.S.C. § 1983.

3

2. Plaintiff VICTOR GUERRERO alleges that the decision of Defendants and

4 Respondents CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

5 (“CDCR”), STATE PERSONNEL BOARD (“SPB”), and in their official capacities only:

6 JEFFREY BEARD, Secretary of the California Department of Corrections and Rehabilitation;

7 SUZANNE AMBROSE, Executive Officer of State Personnel Board; K. CARROLL, Lieutenant;

8 D. SHARP, Sergeant; BARBARA LEASHORE, Hearing Officer; C. HESTER, Lieutenant; V.

9 MAYOL, Lieutenant; S. COX, Lieutenant; V. MYERS, Sergeant; and JOHN (or JANE) DOES

10 1-100, all of whose true names are unknown (collectively, “Defendants”) to disqualify

11 GUERRERO from eligibility for a Correctional Officer position unlawfully discriminated against

12 him on the basis of his national origin and ancestry, and that Defendants’ policies, practices, and

13 decisions have a disparate impact upon particular national origin minorities, such as Latino/a

14 applicants and/or applicants of non-native United States national origin, for the position of

15 Correctional Officer.

16

3. Plaintiff GUERRERO further alleges that Defendants’ disqualification of his

17 application for a Correctional Officer position violated Title VII and his rights under the United

18 States and California Constitutions, and additionally because, as applied, the regulation, 2 Cal.

19 Code of Reg. § 172 (also referred to herein as “State Personnel Board Rule 172” or “SPB Rule

20 172”), under which he was disqualified represents an unlawful expansion of its enabling statute.

21

4. Plaintiff GUERRERO seeks injunctive and declaratory relief, compensatory damages

22 and his reasonable attorneys’ fees and costs as remedies for Defendants’ violations of his rights.

23

JURISDICTION AND VENUE

24

5. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1337. This

25 action is authorized and instituted pursuant to Section 706(f)(3) of Title VII of the Civil Rights

26 Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e-5(f)(3); and Section 1979 of the

27 Revised Statutes of the United States, as amended (Section 1983), 42 U.S.C. § 1983.

28

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1

6. But for the Defendants’ employment practices alleged to be unlawful, Plaintiff

2 would have been eligible for employment in California correctional facilities within this judicial

3 district. Venue is therefore proper.

4

INTRADISTRICT ASSIGNMENT

5

7. This action is appropriate for assignment to the San Francisco Division of this Court,

6 as the unlawful practices alleged were and are now preventing Plaintiff from obtaining

7 employment with Defendants as a Correctional Officer in Marin County, which is situated within

8 the San Francisco Division.

9

PARTIES

10

8. Plaintiff GUERRERO is a citizen of the United States and a resident of Stockton,

11 California, and is of Latino national origin. He is studying for an associate’s degree in Criminal

12 Justice and Correctional Science at San Joaquin Delta College. He received a Certificate of

13 Correctional Science in December 2013, and expects to graduate with a double Associate Degree

14 in Applied Science in Criminal Justice Systems: Law Enforcement and Correctional Science.

15

9. Defendant CDCR is an employer within the meaning of Title VII.

16

10. As set forth by Cal. Penal Code § 13601, SPB must approve any standard used to

17 select Correctional Officers. Defendant SPB is an employer and a third-party interferer within

18 the meaning of Title VII. Alternatively, SPB is an agent of CDCR and/or engaged in an

19 integrated enterprise with CDCR.

20

11. CDCR is a state entity existing under a charter granted by the Legislature of the

21 State of California and adopted pursuant to the Constitution and laws of the State of California.

22 CDCR is responsible for managing the state prison system. CDCR operates at least one

23 correctional facility in Marin County.

24

12. SPB was established under the California Constitution and is responsible for

25 overseeing the merit-based, job-related recruitment and selection process for the hiring of

26 California state employees. SPB audits departments for merit system compliance and is

27 empowered to hear appeals from disqualification of candidates for employment in the

28

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1 Correctional Officer position.

2

13. Defendant SUZANNE AMBROSE is, and was at all relevant times, the Executive

3 Officer of SPB.

4

14. Defendant JEFFREY BEARD is, and was at all relevant times, the Secretary of the

5 CDCR.

6

15. Defendant K. CARROLL is, and was at all relevant times, a Lieutenant at the CDCR

7 and is, and was at all relevant times, involved in conducting CDCR background investigations.

8

16. Defendant D. SHARP is, and was at all relevant times, a Sergeant at the CDCR and

9 is, and was at all relevant times, involved in conducting CDCR background investigations.

10

17. Defendant BARBARA LEASHORE is, and was at all relevant times, a Hearing

11 Officer at the SPB and reviews and reviewed appeals regarding the state civil service system.

12

18. Defendant C. HESTER is, and was at all relevant times, a Lieutenant at the CDCR

13 and is, and was at all relevant times, involved in conducting CDCR background investigations.

14

19. Defendant V. MAYOL is/was at all relevant times a Lieutenant at the CDCR and is,

15 and was at all relevant times, involved in conducting CDCR background investigations.

16

20. Defendant S. COX is/was at all relevant times a Lieutenant at the CDCR and is, and

17 was at all relevant times, involved in conducting CDCR background investigations.

18

21. Defendant V. MYERS is, and was at all relevant times, a Sergeant at the CDCR and

19 is, and was at all relevant times, involved in conducting CDCR background investigations.

20

22. Upon information and belief, Defendant(s) and Respondent(s) JOHN (or JANE)

21 DOE(S) 1-100 are individuals, who were involved and/or responsible for CDCR withholding of

22 certification from Plaintiff and SPB’s involvement in, affirmation of, and/or failure to prevent

23 that decision, and whose identifies and addresses are unknown at this time.

24

23. All of the acts and failures to act alleged herein were performed by and/or

25 attributable to all Defendants. Each Defendant participated in, approved, and/or ratified the

26 unlawful acts and omissions by the other Defendants complained of herein. Said acts and failure

27 to act were within the scope of the inherent authority, employment, and/or direction and/or

28

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1 control of the Defendants.

2

STATEMENT OF FACTS

3

24. In August 2011, Plaintiff GUERRERO applied for a job as a Correctional Officer

4 with CDCR. As part of the application process, Plaintiff GUERRERO was required to complete

5 a written examination and a physical agility test, and to submit to a background investigation.

6 Plaintiff GUERRERO passed the written and physical examinations and was placed on the

7 Correctional Officer eligibility list

8

25. As part of CDCR’s background investigation, Plaintiff GUERRERO filled out a

9 newly-created Background Investigation Questionnaire (“BIQ”), which had been introduced in

10 2009 as part of CDCR’s now-abandoned initiative to incorporate a voice stress test, or polygraph

11 test, into its background investigations. Question 75 of the BIQ asked whether the applicant

12 “had or used a social security number other than the one you used on this questionnaire.” CDCR

13 included Question 75 in the BIQ because it learned that other agencies used similar questions in

14 their lie detection tests. CDCR, however, did so without consulting a criminologist, industrial-

15 organizational psychologist, or other appropriate experts.

16

26. Plaintiff GUERRERO truthfully answered “yes” to Question #75. He submitted an

17 addendum explaining that he was brought to the United States unlawfully in or around 1990

18 when he was approximately 11 years old and that, when he was approximately 15 years old, he

19 started working to support the family and was provided a Social Security number (“SSN”). His

20 addendum also stated that he used the SSN until March 2007, when he obtained his own SSN.

21

27. In October 2011, Plaintiff GUERRERO participated in CDCR’s Pre-Investigatory

22 Interview. At that time, Plaintiff GUERRERO further explained to the background investigator

23 inter alia the following: (a) he was given an SSN so he could start working at a place where a

24 family friend worked when he was approximately 15 years old; (b) he did not learn he was

25 undocumented and that the SSN was not his own until he was 17 years old; (c) he used the SSN

26 to obtain work, but paid all required taxes from 1997 to 2007 using an Individual Taxpayer

27 Identification Number (“ITIN”), which is an identification number issued by the Internal

28

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1 Revenue Service (“IRS”) to persons who are not eligible for an SSN for tax reporting purposes;

2 (d) he became a legal permanent resident of the United States in 2007, was issued his own SSN,

3 and started using his own SSN to file for taxes that same year and retroactively applied for

4 earned income tax credit paid during the years 2005-2007; and (g) he became a United States

5 citizen in 2010.

6

28. On or about January 27, 2012, CDCR sent Plaintiff GUERRERO a letter informing

7 him that he was being “withheld” from the list of eligible candidates for the Correctional Officer

8 position.

9

29. In that letter, Defendants K. CARROLL and D. SHARP stated that Plaintiff

10 GUERRERO’s prior use of an SSN that was not his own, and to his receipt of an ITIN from the

11 IRS, “reflects numerous years of unlawful, unethical behavior.” Lieutenant B. Potter-Goddard

12 likewise signed the letter; however, upon information and belief, Plaintiff believes Lieutenant B.

13 Potter-Goddard to be currently retired and no longer working for CDCR.

14

30. The letter further stated that Plaintiff GUERRERO did not satisfy the requirements of

15 State Personnel Board Rule 172, which, according to the letter, required that “candidates shall

16 possess the general qualifications of integrity, honesty, [and] good judgment”.

17

31. B. Potter-Goddard and Defendants K. CARROLL, and D. SHARP further stated inter

18 alia that ”you [Plaintiff GUERRERO] committed identity theft for eight years but [sic] utilizing

19 a social security number of a United States citizen causing unknown ramifications for that person

20 by having income reported under their number which they were unaware of”.

21

32. The CDCR concluded that this action “shows a lack of honesty, integrity, and good

22 judgment,” and ordered that Plaintiff GUERRERO’s name would be removed from the list of

23 eligible candidates “in compliance with California Government Code § 18935 and State

24 Personnel Board Rule 172”.

25

33. Plaintiff GUERRERO timely appealed CDCR’s decision to SPB in a letter dated

26 February 22, 2012.

27

34. SPB was established under the California Constitution and is responsible for

28

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1 enforcing the merit-based, job-related recruitment and selection process for the hiring of

2 California state employees.

3

35. Together, CDCR and SPB jointly develop, implement, and enforce the employment

4 policies and/or practices used by CDCR to select applications for the Correctional Officer

5 position and to withhold applicants from certification. There are several ways SPB is involved in

6 and/or directs CDCR’s selection process:

7

36. California Penal Code § 13601 Requires That SPB Approve of CDCR’s Selection

8 Standards. Any standard adopted by CDCR for selection of correctional peace officers was

9 subject to SPB approval until July 2012 (when the responsibility for approving CDCR’s

10 standards was transferred to the newly-created California Department of Human Resources).

11

37. According to these obligations, SPB developed and issued a “Merit Selection Manual:

12 Policy and Practices,” which states there is “[a] requirement that State Personnel Board staff

13 approve all departmental examination processes prior to announcement and/or administration.”

14

38. SPB Frequently Reviews CDCR’s Selection Process. SPB’s authority to review

15 CDCR’s selection process is robust. SPB holds “informational hearings” regarding CDCR’s

16 withhold process, either agreeing to or rejecting the policies CDCR uses during its background

17 investigations. In the past, SPB has used these informational hearings and other review

18 processes to analyze CDCR’s policies with respect, for instance, to an applicant’s one-time use

19 of a prescription drug, failure to register for the Selective Service, and CDCR’s educational

20 requirements. Further, SPB’s Test Validation Unit has re-written CDCR’s written examination

21 after determining that the examination was invalid, and has rejected CDCR’s use of a

22 supplemental questionnaire as imposing more requirements than specified by the job

23 classification.

24

39. SPB Is or Was Directly Involved in CDCR’s Selection Process. At all times

25 relevant to this case, SPB, not CDCR, conducted the psychological screens for applicants

26 applying to be a Correctional Officer. According to CDCR’s training manual, CDCR’s

27 background investigators prepared a report for “SPB Psychologists to use in evaluating the

28

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1 applicant,” and the report contained sufficient detail so as “to provide the psychologist a fair

2 insight into the applicant’s character.”

3

40. Further, SPB actually mandated that an SPB representative serve as the Chairperson

4 for all “Qualifications Appraisal Panel” interviews (“QAP”), which were, until recently, required

5 for Correctional Officer examinations. Indeed, SPB issued an entire manual to ensure that proper

6 procedures for QAP interviews were followed. As stated in that manual, the SPB Chairperson

7 “direct[ed] and control[ed] the interview” and, most importantly, “ensure[d] that . . . the

8 principles and practices of equal employment opportunity [were] followed.” Regarding QAPs

9 for peace officer positions, the SPB Chairperson was directed to follow SPB’s Guidelines on the

10 Consideration of Background Information in Peace Officer QAPs (“Guidelines”). In effect since

11 1985, the Guidelines set forth the exact policy to be used in evaluating whether an applicant’s

12 prior unlawful behavior disqualifies them from the peace officer position.

13

41. SPB Provides Training to CDCR’s Personnel Officers. According to its own

14 internal documents, SPB devotes resources to the “development and maintenance” of manuals,

15 and “training programs . . . to provide instruction and consultation to departments on merit-

16 related issues.” SPB’s stated purpose for doing so is to “provide departments with the most up-

17 to-date guidance possible in areas” where delegation has been accomplished, including the

18 withhold process. In addition, according to SPB, its manuals are meant to ensure that CDCR and

19 other state departments “comply with the criteria in the law, regulations and manual sections for

20 the respective [delegated] actions.”

21

42. SPB Retained Authority over CDCR’s Selection Process Despite Delegation.

22 Beginning in the early 1990s, SPB began delegating some of its responsibility to recruit and hire

23 civil service employees to the various state agencies. Specifically, in 1992, SPB delegated its

24 authority to state agencies with regard to withholding candidates if the candidate failed to meet

25 the position’s minimum qualifications. In doing so, SPB established a “post-audit program” or

26 appeal system to review department “withhold from certification” decisions due to failure to

27 meet the minimum requirements.

28

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1

43. However, SPB did not delegate its authority wholesale. Although SPB delegated its

2 withhold authority regarding minimum qualifications, SPB retained authority to withhold from

3 certification those candidates who met the minimum qualifications, but were withheld for other

4 reasons. In 2008, SPB issued a memorandum to all personnel officers to clarify this delegation.

5 In that memorandum, SPB confirmed: “[I]f the withhold action is for any cause other than failure

6 to meet one of the minimum qualifications patterns listed on the class specification, departments

7 are required to submit a written withhold request to SPB.” In addition, this memorandum

8 allowed state agencies to conduct their own background checks, but stated, “[i]f the result of a

9 background check warrants the removal of a candidate from an eligible list, the testing

10 department is required to submit a written request for withhold to the SPB Investigations Unit.”

11

44. In other words, all withholds for reasons other than failure to meet the minimum

12 qualifications required SPB approval. It was not until 2013, when all withhold authority,

13 including for withholds for other reasons, was fully delegated to the state agencies. At the same

14 all withhold authority was delegated, Cal. Gov. Code § 18661 was enacted authorizing SPB to

15 audit departments, including CDCR, for merit system compliance.

16

45. In this case, Mr. Guerrero was not withheld due to his failure to meet the minimum

17 qualifications of a Correctional Officer. Mr. Guerrero was withheld on suitability grounds.

18 CDCR should have been required to ask for SPB’s approval before withholding Mr. Guerrero.

19 Instead, however, SPB directed Mr. Guerrero’s application to the “post-audit program” more

20 appropriate for withholds for failure to meet the minimum qualifications: Mr. Guerrero was told

21 to appeal CDCR’s adverse decision to SPB after-the-fact.

22

46. On appeal, SPB did not hold a formal evidentiary hearing to adjudicate Plaintiff

23 GUERRERO’s appeal. Instead, SPB directed Plaintiff GUERRERO’s appeal to its

24 “investigative process,” which, as applicants are notified, is a process generally based on the

25 written record alone. After the “investigative process,” Defendant LEASHORE, of SPB’s

26 Appeals Division, issued a recommendation that SPB affirm CDCR’s decision.

27

47. Defendant AMBROSE adopted Defendant LEASHORE’S recommendation and

28

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1 SPB officially affirmed CDCR's decision on or about August 21, 2012.

2

48. Defendant LEASHORE’s recommendation cited to State Personnel Board Rule 172,

3 and stated inter alia that “[p]eace officers hold a special position of trust and authority and, as

4 such, they are held to a higher standard of conduct than are other employees . . . by displaying a

5 very high degree of integrity honesty, thoroughness, and good judgment.”

6

49. SPB reasoned that Plaintiff GUERRERO’s use of an SSN that did not belong to

7 him, and his use of an ITIN provided by the IRS, demonstrated “a knowingly [sic] and willful

8 disregard of the law” and, thus, “a lack of honesty, integrity, and good judgment.”

9

50. SPB also erroneously noted that Plaintiff GUERRERO initially misstated the year in

10 which he received his own SSN. After an unnoticed phone call to Mr. Guerrero, SPB, without

11 providing any reasoning, determined that his alleged misstatement “showed a lack of

12 thoroughness and accuracy, which are also issues of unsuitability under section 172.”

13

51. Defendant SPB concluded that Plaintiff GUERRERO’s use of an SSN not assigned

14 to him demonstrated “a lack of thoroughness, accuracy, integrity, honesty, and good judgment.”

15

52. SPB did not provide Plaintiff GUERRERO with any information about how or when

16 to appeal its affirmance of CDCR’s decision.

17

53. SPB’s actions directly conflicted with its obligations under Executive Order S-6-04

18 and Cal. Gov’t Code § 18502(2)(b) to provide “leadership, coordination, technical guidance and

19 enforcement regarding [statewide] efforts to fully achieve equal employment opportunity and

20 non-discriminatory employment practices” and to ensure compliance with the civil service

21 policies, procedures, and statutes.

22

54. In 2013, Plaintiff GUERRERO re-applied for a position as a Correctional Officer.

23 Plaintiff GUERRERO again passed the written and physical examinations. On April 22, 2013,

24 Plaintiff GUERRERO completed the background investigation process, and again truthfully

25 answered that he had at one time used an invented SSN to obtain work.

26

55. On July 22, 2013, Plaintiff GUERRERO again participated in CDCR’s Pre-

27 Investigatory Interview. Plaintiff GUERRERO again truthfully explained the circumstances

28

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1 under which he used the false SSN.

2

56. On or about October 21, 2013, Defendants C. HESTER; V. MAYOL; S. COX and

3 V. MYERS sent Plaintiff GUERRERO a letter on behalf of CDCR informing him that he was

4 being removed from the list of eligible candidates for the Correctional Officer position.

5

57. On or about November 18, 2013, Plaintiff GUERRERO again appealed CDCR’s

6 decision to SPB. To date, Plaintiff GUERRERO has received three separate requests from SPB

7 for further written information; however, no decision has been issued.

8

58. Plaintiff GUERRERO is informed and believes and thereon alleges CDCR is still

9 using the same list of eligible candidates to fill positions.

10

59. CDCR updated its Personal History Statement in November 2012. In the updated

11 Personal History Statement, CDCR continues to ask applicants about their prior use of a Social

12 Security number, see http://www.cdcr.ca.gov/career_opportunities/por/docs/phs.pdf (last visited

13 on September 22, 2014).

14

60. Plaintiff GUERRERO filed administrative charges of employment discrimination

15 with the U.S. Equal Employment Opportunity Commission and the California Department of

16 Fair Employment and Housing on January 24, 2013, and again on December 4, 2013, with

17 respect to the foregoing matters. On December 4, 2013, Plaintiff GUERRERO requested

18 immediate notices of his right to sue thereon.

19

61. On January 29, 2014, Plaintiff received right to sue notices for all three administrative

20 charges. This action is timely filed.

21 // 22 23 24

FIRST CLAIM FOR RELIEF National Origin Discrimination in Violation of Title VII of the Civil Rights Act of 1964, as amended
[42 U.S.C. § 2000e-2] Against All Defendants

25

62. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 through

26 61, as though fully set forth herein.

27

63. Section 703 of Title VII, 42 U.S.C. § 2000e-2, prohibits employment practices that

28

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page12 of 20

1 discriminate against persons on the basis of their national origin.

2

64. Plaintiff GUERRERO is informed and believes and thereon alleges that

3 Defendants’ disqualification of applicants who have previously used an SSN other than their own

4 has an adverse and disproportionate impact on particular national origin minorities, such as

5 Latinos, who seek to qualify for state employment.

6

65. Plaintiff GUERRERO is informed and believes and thereon alleges that Defendants’

7 disqualification of applicants who have previously used an SSN other than their own has an

8 adverse and disproportionate impact upon the ability of persons other than those of United States

9 national origin to qualify for state employment.

10

66. Defendants’ disqualification of applicants for the position of Correctional Officer

11 who have previously used an SSN other than their current SSN is neither manifestly job-related

12 nor consistent with business necessity.

13

67. Less discriminatory alternatives exist to achieve Defendants’ stated business

14 purposes.

15

68. As a further proximate result of these unlawful acts, Plaintiff GUERRERO has

16 suffered and continues to suffer injury, including emotional injury.

17

69. Plaintiff GUERRERO is entitled to compensatory damages, injunctive and

18 declaratory relief, and his reasonable attorneys’ fees and costs of suit.

19

SECOND CLAIM FOR RELIEF

20

National Origin Discrimination (Third Party Interference) in Violation of

21

Title VII of the Civil Rights Act of 1964, as amended [42 U.S.C. § 2000e-2]

22

Against Defendant State Personnel Board

23

70. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 through

24 69, as though fully set forth herein.

25

71. Section 703 of Title VII, 42 U.S.C. § 2000e-2, prohibits not only discrimination

26 against an employee by his or her direct employer but, in addition, discrimination against

27 employees by entities that are not their actual or potential direct employers. Specifically, Title

28

12
THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page13 of 20

1 VII proscribes actions, by entities that control access to employment, which interfere with a

2 direct employment relationship, whether actual or potential so as to deny employment

3 opportunities on the basis of invidious criteria.

4

72. Pursuant to statute, Defendant SPB is responsible for overseeing the merit-based, job-

5 related recruitment and selection process for the hiring of state employees, including for CDCR.

6 Cal. Gov. Code 18502(2)(b). As such, Defendant SPB is responsible for ensuring that CDCR’s

7 employee selection procedures comply with all applicable laws, including Title VII. Cal. Gov’t

8 Code § 18500(5).

9

73. Defendant SPB, in its role of considering appeals by applicants for employment

10 from adverse CDCR employment decisions, is also responsible for ensuring that the CDCR

11 decisions appealed from comply with all applicable laws.

12

74. Defendant SPB nonetheless ratified and, indeed, affirmatively upheld CDCR’s use of

13 Question 75 to improperly disqualify Plaintiff GUERRERO from employment as a Correctional

14 Officer. Defendant SPB did so instead of fulfilling its responsibilities to ensure CDCR’s

15 compliance with Title VII inter alia by reversing CDCR’s improper disqualification of Plaintiff

16 GUERRERO.

17

75. Furthermore, Defendant SPB is responsible for the promulgation of regulations

18 pursuant to Cal. Gov’t Code § 18935, and promulgated SPB Rule 172 pursuant to that statutory

19 responsibility. CDCR relied upon Defendant SPB’s interpretation of Cal. Gov’t Code § 18935

20 and SPB’s promulgation of SPB Rule 172 to improperly disqualify Plaintiff GUERRERO from

21 eligibility for the Correctional Officer position.

22

76. In addition, Defendant SPB, in violation of its statutory responsibilities, failed to

23 exercise sufficient oversight over CDCR’s employment practices, including without limitation by

24 failing to ensure that CDCR’s background investigation process was free of questions that had

25 the tendency to have a disproportionate adverse impact upon applicants on the basis of national

26 origin.

27

77. For the foregoing reasons, Defendant SPB interfered with the formation of a direct

28

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Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page14 of 20

1 employment relationship with CDCR so as to restrict Plaintiff GUERRERO’s employment

2 opportunities on the basis of invidious criteria.

3

78. Because Defendant SPB’s promulgation of SPB Rule 172 served as the basis for

4 CDCR’s disqualification of Plaintiff GUERRERO, and also because Defendant SPB is

5 responsible for overseeing CDCR’s employee selection procedures, Defendant SPB is a

6 necessary party hereto in that it alone is capable of providing aspects of the injunctive relief

7 Plaintiff GUERRERO seeks.

8

79. Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive

9 relief, and his reasonable attorneys’ fees and costs of suit.

10

THIRD CLAIM FOR RELIEF

11

For Violation of Equal Protection Clause of Fourteenth Amendment to the

United States Constitution

12

[42 U.S.C. § 1983]

13

80. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 through

14 79, as though fully set forth herein.

15

81. Plaintiff GUERRERO has a right to equal protection of the laws which is secured

16 by the Fourteenth Amendment to the United States Constitution.

17

82. Defendants disqualify the following class of individuals from the Correctional Officer

18 position: individuals who once used a false SSN for the purpose of obtaining and maintaining

19 employment and its incidents. As such, Defendants treat this class of individuals differently than

20 otherwise similarly-situated applicants without any rational basis.

21

83. Alternatively, Defendants disqualify the following class of individuals from the

22 Correctional Officer position: individuals who recently used a false SSN for the purpose of 23 obtaining and maintaining employment and its incidents, however Defendants choose to define 24 “recently.” On information and belief, Defendants’ definition of “recently” is not based on any 25 analysis, experience, consideration, and/or study of how or when prior use of a false SSN is more 26 likely to hinder the applicant’s ability and/or suitability to be a Correctional Officer. As such, 27 Defendants treat this class of individuals differently than otherwise similarly-situated applicants

28

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page15 of 20

1 without any rational basis.

2

84. Defendants’ policy and/or practice of disqualifying individuals who once used a false

3 SSN for the purpose of obtaining and maintaining employment is wholly inconsistent,

4 undermining any claim that the practice and/or policy is rationally based.

5

85. Alternatively, Defendants’ policy and/or practice is that prior use of a false SSN for

6 the purpose of obtaining and maintaining employment is a “single-issue withhold.” In other

7 words, an applicant may be disqualified based solely on their prior use of a false SSN for the

8 purpose of obtaining and maintaining employment. There is no rational basis for considering

9 prior use of a false SSN for the purpose of obtaining and maintaining employment as a “single-

10 issue withhold” when comparable misconduct, arguably more related to the applicant’s

11 “character” does not operate as a “single-issue withhold.”

12

86. The actions of Defendants, through their rejection of Plaintiff GUERRERO’s

13 application for a Correctional Officer position and through their pervasive and continuing

14 practice of disqualifying applicants from state employment based solely on an applicant’s prior

15 use, for the purpose of obtaining and maintaining employment and its incidents, of a Social

16 Security number not validly issued to them, have caused and will continue to cause such

17 individuals’ disqualification from the position, thereby depriving them of the rights, privileges,

18 and immunities secured to them by 42 U.S.C. § 1983 and the Equal Protection Clause of the

19 Fourteenth Amendment to the United States Constitution.

20

87. Defendants’ actions are not rationally based on a legitimate government interest. An

21 individual’s prior use of a Social Security number not validly issued to him for the purposes of

22 obtaining employment has no bearing on the individual’s suitability to be a Correctional Officer.

23

88. Defendants acted under color of state law when unconstitutionally discriminating

24 against Plaintiff GUERRERO and other individuals who have used a Social Security number not

25 validly issued to them.

26

89. As a proximate result of these unlawful acts, the Plaintiff GUERRERO has suffered

27 and continues to suffer irreparable injury.

28

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Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page16 of 20

1

90. Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive

2 relief, and his reasonable attorneys’ fees and costs of suit.

3

FOURTH CLAIM FOR RELIEF

For Violation of Due Process Clause of Fourteenth Amendment to the

4

United States Constitution

5

[42 U.S.C. § 1983]

91. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 through 6

90, as though fully set forth herein. 7

92. Plaintiff GUERRERO has a liberty interest in choosing his field of employment, 8

which is protected against arbitrary and/or capricious state interference by the Due Process 9

Clause of the Fourteenth Amendment to the United States Constitution and the California 10

Constitution. 11

93. By denying Plaintiff GUERRERO the ability to be considered for the Correctional 12

Officer position and refusing to provide Plaintiff GUERRERO with a formal evidentiary hearing 13
to appeal the CDCR decision, Defendants, acting under color of state law, deprived Plaintiff 14
GUERRERO of the ability to engage in the profession of Correctional Officer, in violation of the 15
Due Process Clause of the Fourteenth Amendment to the United States Constitution. 16
94. As a proximate result of these unlawful acts, Plaintiff GUERRERO suffered and
17 continues to suffer irreparable injury.
18 95. Plaintiff GUERRERO is entitled to relief, including declaratory relief, injunctive
19 relief, and his reasonable attorneys’ fees and costs of suit.

20 DECLARATORY RELIEF ALLEGATIONS

21 96. A present and actual controversy exists between Plaintiff GUERRERO and

22 Defendants concerning their rights and respective duties. Plaintiff GUERRERO contends that

23 Defendants violated his rights under Title VII, and the Fourteenth Amendment to the United

24 States Constitution. Plaintiff is informed and believes and thereon alleges that the Defendants

25 deny these allegations. Declaratory relief is therefore necessary and appropriate.

26 97. Plaintiff GUERRERO seeks a judicial declaration of the rights and duties of the

27 respective parties.

28

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

Case3:13-cv-05671-WHA Document117 Filed10/29/14 Page17 of 20

1

INJUNCTIVE RELIEF ALLEGATIONS

2

98. No plain, adequate, or complete remedy at law is available to Plaintiff GUERRERO

3 to redress the wrongs addressed herein.

4

99. If this Court does not grant the injunctive relief sought herein, Plaintiff

5 GUERRERO will be irreparably harmed.

6

PRAYER FOR RELIEF

7

WHEREFORE, Plaintiff prays for relief as follows:

8

1. For a declaration that Defendants’ actions, policies, and practices as alleged herein

9 are unlawful;

10

2. For injunctive relief barring Defendants from disqualifying applicants from state

11 employment based solely on their prior use, for the purpose of obtaining and maintaining

12 employment, of a Social Security number not validly issued to them;

13

3. For injunctive relief directing Defendants to discontinue their unlawful policy and

14 practice of relying on SPB Rule 172 to disqualify applicants who used an SSN other than their own

15 in the past and/or affirm state agency decisions;

16

4. For injunctive relief directing Respondents to set aside their decisions dated January

17 27, 2012, August 21, 2012, and October 21, 2013, disqualifying Plaintiff GUERRERO as a

18 candidate for the position of Correctional Officer, and to restore him to eligibility for that position,

19 or to show cause why a writ of administrative mandate to the same effect should not be issued;

20

5. For injunctive relief directing SPB to grant his appeal and reverse CDCR’s October 21,

21 2013 decision disqualifying Plaintiff GUERRERO as a candidate for the position of Correctional

22 Officer, and to restore him to eligibility for that position;

23

6. For an order requiring Defendants to notify their personnel, investigators,

24 administrative law judges, and hearing officers about the prevalent use of SSNs other than their

25 own among immigrant workers and the discriminatory impact a policy barring applicants from

26 state employment based on their prior use of an SSN other than their own would have on particular

27 national origin minorities such as Latinos;

28

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

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1

7. For compensatory damages for Plaintiff’s emotional pain and suffering, in an amount

2 to be proven at trial;

3

8. For interest on damages, including pre- and post-judgment interest and an upward

4 adjustment for inflation;

5

9. For an order enjoining Defendants from engaging in the unlawful acts complained of

6 herein;

7

10. For reasonable attorneys’ fees and costs of suit pursuant to 42 U.S.C. § 1988(b), 42

8 U.S.C. § 2000e-5(k) and other laws;

9

11. For such other and further relief as this Court deems just and proper.

10 11 Dated: October 29, 2014

Respectfully submitted,

12

Marsha J. Chien

13

Christopher Ho

14

THE LEGAL AID SOCIETY --

EMPLOYMENT LAW CENTER

15

16

By: /s/ Marsha J. Chien

_______

17

MARSHA J. CHIEN

Attorneys for Plaintiff and Petitioner

18

VICTOR GUERRERO

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

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1

DEMAND FOR JURY TRIAL

2

Plaintiff GUERRERO demands a trial by jury for his First and Second Claims for Relief

3 as provided by Rule 38 of the Federal Rules of Civil Procedure.

4 Dated: October 29, 2014
5 6 7 8 9 10

Marsha J. Chien Christopher Ho THE LEGAL AID SOCIETY -EMPLOYMENT LAW CENTER

By: /s/ Marsha J. Chien MARSHA J. CHIEN

_______

Attorneys for Plaintiff and Petitioner VICTOR GUERRERO

11

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

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1

VERIFICATION

I, MARSHA CHIEN, declare: 2

1. I am an attorney at law duly admitted and licensed to practice before all courts of this 3

State. 4

2. I have my professional office at 180 Montgomery Street, Suite 600, San Francisco, 5

California 94104. 6

3. I am one of the attorneys of record for Victor Guerrero, Plaintiff in this action. 7

4. The Plaintiff is absent from the county in which I have my office. 8

5. For that reason, I am making this verification on his behalf. 9

6. I have read the foregoing Petition for Writ of Mandate and Complaint and know the 10

contents thereof. 11
7. The same is true of my own knowledge, except as to those matters which are therein 12
alleged on information and belief and as to those matters I believe them to be true.
13 I declare under penalty of perjury under the laws of the State of California that the

14 foregoing is true and correct, and that this verification was executed at San Francisco, California,

15 on October 29, 2014.

16

17

/s/ Marsha J. Chien _____________ MARSHA J. CHIEN

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THIRD AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND CONSTITUTIONAL VIOLATIONS

 
 1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7

VICTOR GUERRERO,

8

Plaintiff,

9

v.

10

CALIFORNIA DEPARTMENT OF

11 CORRECTIONS AND REHABILITATION;

STATE PERSONNEL BOARD; et al.,

12

Defendants.

13

/

No. C 13-05671 WHA
FINDINGS OF FACT AND CONCLUSIONS OF LAW

United States District Court For the Northern District of California

14 INTRODUCTION
15 In this Title VII and equal protection challenge, a Latino applicant seeks relief after being
16 twice denied employment as a corrections officer. This order includes the findings of fact and
17 conclusions of law following a six-day bench trial.
18 PROCEDURAL HISTORY
19 Plaintiff Victor Guerrero, who is Latino, was born in Mexico and brought to the United
20 States by his parents in 1990 at age eleven. In 1995, at age fifteen, Guerrero began using an
21 invalid social security number, a made-up number, to obtain employment. Guerrero continued to
22 use the invalid SSN until 2007, when he became a permanent resident and obtained a valid SSN.
23 Guerrero obtained United States citizenship in 2011.
24 In August 2011, after becoming a citizen, Guerrero applied to become a corrections
25 officer at the California Department of Corrections. After passing CDCR’s written and physical
26 examinations, CDCR placed him on its eligibility list. The next step included completing
27 CDCR’s background investigation questionnaire. Question 75 asked: “Have you ever had or
28 used a social security number other than the one you used on this questionnaire?” Guerrero

answered “Yes” and wrote in an explanation.

United States District Court For the Northern District of California

1

Several months later, CDCR informed Guerrero that he had been removed from the

2 eligibility list due to his previous use of an invalid SSN. Guerrero appealed CDCR’s decision to

3 the California State Personnel Board, which affirmed.

4

Guerrero reapplied to be a CDCR corrections officer in 2013. After again answering

5 “Yes” to Question 75, and again explaining, CDCR again withheld him from the eligibility list.

6 Guerrero again appealed to SPB. That appeal remains pending.

7

In December 2013, after receiving a right-to-sue letter from the Equal Employment

8 Opportunity Commission, plaintiff commenced this individual action in federal court and

9 eventually filed a first amended complaint in January 2014. (This is not and has never been a

10 class action.)

11

In February 2014, defendants filed motions to dismiss, later withdrawn in light of a

12 second amended complaint alleging federal claims under Title VII, equal protection and due

13 process claims under Section 1983, as well as several state law claims, including a petition for a

14 writ of mandate. That pleading sought injunctive and declaratory relief, compensatory damages

15 and attorney’s fees and costs of suit against CDCR and SPB (Dkt. Nos. 1, 24, 25).

16

In March 2014, defendants filed motions to dismiss the second amended complaint. A

17 May 2014 order dismissed without prejudice Guerrero’s state-law claims (including his petition

18 for a writ of mandate without prejudice to re-filing in state court) under the Eleventh

19 Amendment. The order granted in part and denied in part the remainder of defendants’ motions

20 to dismiss. Plaintiff’s equal protection and substantive due process claims were also dismissed

21 (the equal protection claim was later revived). In dismissing these claims, the order found

22 plaintiff’s equal protection allegation insufficient to meet the Iqbal pleading standard and stated

23 that plaintiff’s substantive due process claim would be “better adjudicated under the equal

24 protection analysis.” In denying in part defendants’ motions to dismiss, the May 2014 order held

25 that plaintiff’s procedural due process and Title VII claims needed a more complete record and

26 that discovery would proceed. The order, however, dismissed plaintiff’s Title VII claim against

27 SPB (Dkt. Nos. 35, 38, 52).

28

2

United States District Court For the Northern District of California

1

In July 2014, defendants moved for summary judgment on all of plaintiff’s remaining

2 claims. An order then denied without prejudice plaintiff’s motion for leave to file a third

3 amended complaint to allow both sides the benefit of discovery. After a hearing on defendants’

4 motions for summary judgment on September 30, 2014, an order found that both sides would

5 benefit from further development of the record (Dkt. Nos. 79, 104).

6

In October 2014, an order granted plaintiff’s renewed motion for leave to file a third

7 amended complaint, which alleged procedural due process, equal protection, and Title VII

8 violations against CDCR and SPB. The complaint sought declaratory and injunctive relief,

9 compensatory damages and attorney’s fees and costs of suit. Guerrero sought the equitable

10 remedies of back pay and front pay. Fact discovery closed in January 2015. Guerrero’s writ

11 remains pending in state court but has been stayed until his federal claims are resolved (Dkt.

12 Nos. 117, 154, 156).

13

In March 2015, the parties filed cross-motions for summary judgment. After a hearing in

14 April 2015, an order dismissed the procedural due process claim and denied all other motions,

15 leaving the Title VII and equal protection claims for trial against both CDCR and SPB.

16

After a final pretrial conference, an omnibus order limited the experts’ direct testimony to

17 the opinions expressed in their FRCP 26 expert disclosures, but allowed testimony outside those

18 disclosures if raised during cross examination. The order set out trial rulings on a number of

19 other motions.

20

A bench trial began on June 15, 2015. In advance of this date and to accommodate a

21 witness, the Court, however, heard testimony from that witness on June 9, 2015. After a six-day

22 bench trial, the parties submitted proposed findings of fact and conclusions of law.

23

Rather than merely vet each and every finding and conclusion proposed by the parties,

24 this order has navigated its own course through the evidence and arguments, although many of

25 the proposals have found their way into this order. Any proposal that has been expressly agreed

26 to by the opposing side at least in part, however, shall be deemed adopted (to the extent agreed

27 on), even if not expressly adopted herein. It is unnecessary for this order to cite to the record for

28

3

United States District Court For the Northern District of California

1 all the findings herein. Citations will only be provided as to particulars that may assist the court

2 of appeals. All declarative statements herein are factual findings.

3

FINDINGS OF FACT

4

VICTOR GUERRERO

5

1. Plaintiff Victor Guerrero was brought to the United States in 1990 by his parents,

6 who were lawful permanent residents, at age eleven. He attended William C. Overfelt High

7 School in San Jose, but did not graduate.

8

2. Since 1986, federal law has required employers to hire only documented workers

9 and a social security number is commonly used as such proof. Guerrero began working at age

10 fifteen in 1995. In order to work, Guerrero, with the help of an acquaintance and at the urging of

11 his parents, invented an invalid social security number, i.e., one not actually issued by the Social

12 Security Administration. The invented number eventually got issued to someone else in 2004.

13

3. In 1997, at age seventeen, Guerrero applied to adjust his immigration status, in

14 part so he could receive a validly issued SSN. This application languished until, via his later

15 marriage, Guerrero secured legal status in 2007. While his application remained unaddressed,

16 Guerrero continued to use his invalid SSN to keep employment.

17

4. Also in 1997, Guerrero applied to the Internal Revenue Service to receive an

18 Individual Taxpayer Identification Number. An ITIN is a number issued by the IRS, upon

19 request, to individuals who, like Guerrero, are employed, but do not have valid SSNs, so that

20 they can pay their federal taxes. The IRS issued Guerrero an ITIN in 1997. Guerrero began

21 paying federal taxes with his legitimate ITIN in 1998 and continued doing so until 2007, when

22 he received his own valid SSN.

23

5. Also in 1997, while working in Colorado, Guerrero suffered an injury on a job

24 and applied for workers’ compensation benefits. In completing the application form, Guerrero

25 consistently used the same SSN he had used with the employer in question, namely the invalid

26 SSN.

27

6. In 2004, at age 25, Guerrero married. At that time, Guerrero’s wife, Nayeli

28 Ramirez, had already obtained legal permanent residency in the United States. In 2006,

4

United States District Court For the Northern District of California

1 Guerrero’s wife became a United States citizen. She then filed an “immediate relative” visa

2 petition on Guerrero’s behalf.

3

7. In 2005, at age 28, Guerrero earned his General Education Development

4 certificate. He then pursued a degree in criminal justice at San Joaquin Delta College, but so far

5 has not earned that degree.

6

8. In 2007, Guerrero became a lawful permanent resident and received his own

7 valid SSN. Shortly thereafter, Guerrero amended his 2004 and 2005 tax returns, such that the

8 income earned during those years became associated with his new, valid SSN. The amendments

9 also allowed Guerrero to claim and to obtain earned-income and child tax credits.

10

9. In short, from 1997 (when Guerrero first applied for legal status), until 2007

11 (when he obtained legal status), Guerrero did everything he reasonably could have done to

12 navigate the immigration system and obtain legal residence. The ten-year hiatus from his first

13 application to when he finally obtained legal status (and a valid SSN) resulted from an

14 administrative backlog, not from any failing by Guerrero.

15

10. In February 2011, Guerrero became a United States citizen.

16

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

17

11. The California Department of Corrections and Rehabilitation operates the state

18 prison system, including supervision of approximately 168,000 adult and 1,400 juvenile

19 offenders. CDCR hires and employs corrections officers, all of whom must be United States

20 citizens. In CDCR’s overall hiring, there is virtually no difference between the selection rates

21 for Latinos and non-Latinos — Latinos, in fact, are over represented in CDCR’s ranks compared

22 to their representation in the California workforce.

23

12. In hiring corrections officers, California law requires CDCR to conduct a

24 thorough background investigation to determine that candidates have good moral character.

25 Corrections officers are authorized to carry firearms. And, they are subject to pressure and

26 manipulation from inmates. In determining moral character, CDCR evaluates applicants’

27 integrity, honesty, and good judgment, among other qualifications. Integrity, honesty, and good

28 judgment remain important and valid qualifications for corrections officers.

5

United States District Court For the Northern District of California

1

13. CDCR closes approximately 1,000 background investigations per month.

2 Currently, CDCR employs 65 sergeants, twelve lieutenants, and thirteen retired annuitants who

3 work in the background investigation unit.

4

14. At all material times, CDCR’s process for determining the eligibility of a

5 candidate required two phases. Phase One consisted of a written test and a minimum-

6 qualifications assessment. Phase Two consisted of a background investigation, physical-fitness

7 test, vision screening, psychological evaluation, and medical examination. Following Phase

8 Two, if they passed, eligible candidates enrolled in a training program at the academy.

9

15. At the times in question (and still, it appears), Phase Two applicants completed a

10 lengthy background questionnaire. Upon receiving the questionnaire, CDCR automatically

11 “withheld” — meaning disqualified — applicants who engaged in certain acts (e.g., those with

12 an adult felony conviction). Prior use of an invalid SSN, however, did not always result in a

13 decision to withhold. In some cases, CDCR excused prior use of an invalid SSN.

14

16. CDCR sergeants conducted tape-recorded interviews of applicants. If CDCR

15 withheld an applicant at this stage, the applicant would be sent a withhold letter, which laid out

16 the main reasons for rejection.

17

QUESTION 75

18

17. In 2009, CDCR began using Question 75 as part of its background investigation

19 for the hiring of corrections officers. Question 75 asked: “Have you ever had or used a social

20 security number other than the one you used on this questionnaire?” The applicant could check

21 “Yes” or “No.” If the applicant checked “Yes,” the applicant had to attach a supplement

22 explaining the “Yes” answer.

23

18. CDCR borrowed Question 75 from the background investigation materials of a

24 different law enforcement agency. Before its adoption, CDCR never articulated any

25 particularized need for the use of Question 75, but at least one legitimate reason has emerged in

26 this case, namely providing CDCR with identifying information usable to conduct background

27 checks. That is, in addition to a valid SSN, CDCR may use invalid numbers to vet candidates.

28

6

United States District Court For the Northern District of California

1

19. From 2009 to 2014, 23,292 corrections officer candidates answered Question 75

2 through CDCR’s background investigation. Of those applicants, 10,357 were Latino, 12,929 were

3 non-Latino, and six were unidentified. Of those applicants, 42 answered “Yes” to Question 75. Of

4 the 42, 33 were Latino and nine were non-Latino. Of the 33 Latinos, CDCR cleared fourteen

5 Latinos and withheld nineteen Latinos. Of the nineteen, CDCR withheld nine at least in part

6 because of their prior use of an invalid SSN. For two of those nine, use of an invalid SSN was the

7 only reason mentioned in the withhold letter. Of the nine non-Latinos who responded “Yes” to

8 Question No. 75, CDCR cleared three non-Latinos and withheld six non-Latinos. CDCR withheld

9 all six non-Latinos without reference to their prior use of an invalid SSN. Nine applicants were

10 withheld at least in part on account of prior use of an invalid SSN, all of whom were Latino.

11

20. The chart below illustrates the breakdown of the applicants who answered “Yes”

12 to Question 75:

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

United States District Court For the Northern District of California

1

GUERRERO’S APPLICATIONS TO CDCR AND APPEALS TO SPB

2

21. Guerrero first applied to be a corrections officer with CDCR in the summer of

3 2011, shortly after obtaining United States citizenship. During Phase One, CDCR concluded that

4 he possessed the minimum qualifications to be a corrections officer. He successfully completed

5 the written and physical examinations. CDCR granted him a place on the corrections officer

6 eligibility list. CDCR then proceeded to Phase Two, the background investigation phase.

7

22. Guerrero had held steady employment throughout his adult life, owned his own

8 home, maintained a steady family life with his wife and three children, had taken some college

9 classes in the field of criminal justice, and had submitted several personal and employer

10 references to CDCR. His record contained no blemishes other than his previous use of an invalid

11 SSN.

12

23. As part of Phase Two, Guerrero completed the background investigation

13 questionnaire. Question 75 asked: “Have you ever had or used a social security number other

14 than the one you used on this questionnaire?” Guerrero answered “Yes” to this question,

15 explaining that he had come the United States as a child and had used the invalid SSN for

16 employment purposes.

17

24. On October 31, 2011, Guerrero appeared for his pre-investigatory interview with

18 the background investigator assigned to his file, Sergeant David Sharp, who informed Guerrero

19 that his invalid SSN use would be an issue and requested additional documentary information.

20 Guerrero submitted additional tax returns and other information.

21

25. Following the pre-investigatory interview, Sergeant David Sharp requested that

22 Guerrero obtain a credit report under both his valid and invalid SSNs (TX 371E). Guerrero

23 complied. He requested credit reports from a third party and submitted the reports to Sergeant

24 Sharp. Guerrero, however, made a point not to look at the credit report under the invalid SSN

25 (out of respect for the privacy of its true recipient). Sergeant Sharp received the reports prior to

26 issuing the withhold letter.

27

28

8

United States District Court For the Northern District of California

1

26. The credit report for the invalid SSN included Guerrero’s name and date of birth

2 under sections entitled applicant information and identification information, respectively. The

3 report showed six accounts opened from 2003–2011.

4

27. On January 27, 2012, Sergeant Sharp sent a letter to Guerrero informing him that

5 he had been withheld from the corrections officer eligibility list. The withhold letter stated (TX

6 1):

7

The fact that you committed identity theft for eight years but [sic]

utilizing a social security number of a United States citizen causing

8

unknown ramifications for that person by having income reported

under their number that they were unaware of reflects that you are

9

not suitable to assume the duties and responsibilities of a peace

officer. The result of the background investigation revealed that

10

you fail to possess these qualifications. You chose to use an

unauthorized social security number even though you had [sic]

11

taxpayers [sic] ID number, shows a willful disregard for the law.

This 8 year act of unlawfulness shows a lack of honesty, integrity,

12

and good judgment.

13

28. One month later, Guerrero appealed CDCR’s withhold decision to SPB, laying

14

out the myriad of reasons that he remained qualified to be a corrections officer, despite his prior

15

use of an invalid SSN. In his appeal letter, Guerrero also alleged that he had been discriminated

16

against, stating: “I believe my disqualification as a candidate for Corrections Officer was based

17

upon a subtle prejudice and discrimination because I am a Naturalized US citizen and not a US

18

born citizen.”

19

29. SPB advised Guerrero that his appeal had been received, but SPB did not

20

schedule an evidentiary hearing before an administrative law judge to determine the merits of

21

Guerrero’s discrimination claim, nor did SPB take any action at all regarding Guerrero’s claim

22

that CDCR had discriminated against him. On August 21, 2012, SPB affirmed CDCR’s decision

23

to withhold Guerrero. SPB’s decision letter stated (TX 7):

24

Appellant admits to learning of his illegal alien status at age

25

seventeen and “inventing” a social security number (SSN) to gain

employment. Appellant further admits to using the same social

26

security number for the purposes of filing income taxes and a

workers’ compensation claim. While Appellant maintains that he

27

did not steal another’s social security number, his conduct

demonstrates a knowingly [sic] and willful disregard for the law,

28

as he admits to continued use of the SSN even after obtaining [sic]

9

United States District Court For the Northern District of California

1

Individual Taxpayer Identification Number (ITIN) in 1997, thus

demonstrating a lack of honesty, integrity and good judgment.

2

30. After waiting the mandatory year, Guerrero again applied to be a corrections

3

officer with CDCR in the spring of 2013. He passed the written and physical exams in Phase One

4

and proceeded to Phase Two, the background investigation stage, where he again answered “Yes”

5

to Question 75, explaining that he had come the United States as a child and had used the invalid

6

SSN for employment purposes.

7

31. On October 21, 2013, CDCR again withheld Guerrero from the eligibility list,

8

stating (TX 3):

9

The fact that you committed identity theft for eight years but [sic]

10

utilizing a social security number of a United States citizen causing

unknown ramifications for that person by having income reported

11

under their number that they were unaware of reflects that you are

not suitable to assume the duties and responsibilities of a peace

12

officer. The result of the background investigation revealed that

you fail to possess these qualifications. You chose to use an

13

unauthorized social security number even though you had [sic]

taxpayers [sic] ID number, shows a willful disregard for the law.

14

This 8 year act of unlawfulness shows a lack of honesty, integrity,

and good judgment.

15

32. This section of CDCR’s withhold letter was exactly identical, word for word, to

16

the same paragraph earlier sent to Guerrero. (The two letters even contained the exact same typos

17

and grammatical errors.)

18

33. In November 2013, Guerrero appealed the second CDCR withhold decision to

19

SPB, which has yet to rule on that appeal.

20

34. CDCR did not undertake an individualized assessment of Guerrero’s case and

21

history in determining his honesty, integrity, and good judgment. While CDCR representatives

22

testified that they vetted the recency, relevancy, and severity of Guerrero’s prior invalid SSN use,

23

no actual documentary evidence exists to support this assertion, and the withhold letters simply

24

treated the use of an invalid SSN as a showstopper in Guerrero’s case. There are no memos in

25

any files suggesting how CDCR might have considered the recency, relevancy, and severity of

26

Guerrero’s invalid SSN use, and this order finds that CDCR did not do so in his case.

27

35. CDCR’s assertion in the withhold letters that Guerrero continued to use an

28

invalid SSN despite procuring an ITIN shows that CDCR fundamentally misunderstood the facts.

10

United States District Court For the Northern District of California

1 CDCR should have known (but did not) that an ITIN and an SSN are completely separate and do

2 not substitute one for the other. Guerrero applied for the ITIN so he could pay his taxes, precisely

3 because he did not have a valid SSN. The ITIN, however, could never have been a substitute for

4 an SSN, valid or invalid. He used his ITIN to pay his tax bill but needed his invalid SSN to

5 continue working. Instead of a negative character flaw, Guerrero’s application for and use of an

6 ITIN should have served as a positive character trait (desire to pay his taxes) and mitigated, to an

7 extent, his use of an invalid SSN. CDCR failed to see that Guerrero’s ITIN use stood out as a

8 positive rather than a negative.

9

36. CDCR’s emphatic accusation that Guerrero had committed “identity theft” was

10 incorrect as well. Identity theft involves a thief misappropriating the name, address, and/or credit

11 history of someone else to conduct credit transactions, such as using someone’s name, address,

12 and credit card number to steal a television. Guerrero, however, always used his own name (and

13 true address). He never used anyone else’s name, address, or credit card. He did use an invalid

14 SSN and, after the SSA issued that number to someone else in 2004, Guerrero could be said to

15 have misappropriated that person’s number, although no evidence came up at trial to show any

16 harm to the true holder of that number.

17

37. The credit report associated with the invalid SSN (TX 371B) came into evidence

18 only to show the information available to CDCR — not for the truth of whether Guerrero used the

19 invalid SSN to obtain credit (it being hearsay for that purpose). At no time during the application

20 process did CDCR cite this credit report and it had no impact on CDCR’s decision to withhold

21 Guerrero. The withhold letter — which did not mention the issue of credit — set forth all

22 substantial reasons for the withhold. No argument has been made that Guerrero ever failed to

23 make good on the credit accounts or that he somehow cheated creditors. The worst that can be

24 said is that, to open credit accounts, he used the same SSN he had already used for employment

25 so that the stores could trace his true work history.

26

38. This order finds that CDCR withheld Guerrero solely based on the fact of his

27 invalid SSN use, without delving into any relevant analysis surrounding the recency, relevancy,

28 or severity of Guerrero’s invalid SSN use.

11

United States District Court For the Northern District of California

1

39. Today, Guerrero lives with his wife and three children in Stockton, California.

2 He works as a solid waste recovery worker for the Stockton Public Works Department. Despite

3 the multiple rejections, Guerrero still wishes to become a corrections officer with CDCR. He

4 attended all but one day of the evidence at trial (and testified himself).

5

CALIFORNIA STATE PERSONNEL BOARD

6

40. At all material times, the California State Personnel Board enforced the civil

7 service statutes, among other responsibilities. SPB also resolved appeals of CDCR’s withhold

8 decisions, but SPB was not involved in CDCR’s initial withhold decisions. SPB had the power to

9 reverse CDCR’s withhold decisions through the appeals process.

10

41. SPB was (and remains) a control agency for CDCR and oversaw equal

11 opportunity programs throughout California.

12

42. If an appellant filed a timely appeal of a CDCR withhold decision, SPB would

13 acknowledge receipt of the appeal via a letter. Both sides could then submit documents to SPB,

14 but most appeals did not involve a hearing. Instead, SPB resolved most appeals through

15 investigation and/or written determination.

16

43. An SPB investigative officer would then draft a recommended decision. That

17 decision would be reviewed by the manager of the Merit Appeals Unit. The five-person State

18 Personnel Board would then issue a final decision, unless it remanded the case to the investigative

19 officer. Upon entry of a final decision, the candidate could seek judicial review.

20

44. As detailed above, Guerrero appealed CDCR’s rejection of his first application,

21 which SPB affirmed. Guerrero’s second appeal to SPB, of CDCR’s second rejection, remains

22 pending.

23

OTHER APPLICANTS WITHHELD IN WHOLE OR IN PART

FOR HAVING USED AN INVALID SSN

24

45. Before trial, the parties were requested to submit joint summaries of the nine

25

Latino applicants who CDCR withheld in whole or in part due to their prior use of an invalid

26

SSN, but counsel were unable to agree on summaries for the nine applicants. Therefore, the

27

Court has thoroughly reviewed each of these voluminous administrative files and created its own

28

12

United States District Court For the Northern District of California

1 summaries, for the benefit of the record and the court of appeals. These lengthy findings will be

2 included in an appendix to this order.

3

46. In all nine cases, CDCR failed to appropriately apply the three EEOC factors to

4 assess an individual’s use of an invalid SSN. The first factor calls for careful consideration of

5 “the nature and gravity of the offense or conduct.” The second factor considers “the time that has

6 passed since” the conduct. The third factor looks to “the nature of the job held or sought.” U.S.

7 EQUAL EMP’T OPPORTUNITY COMM’N, EEOC ENFORCEMENT GUIDANCE: CONSIDERATION OF

8 ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL

9 RIGHTS ACT OF 1964 (2012). CDCR has stated: “[A]ll candidates for State civil service shall

10 possess the general qualifications of integrity, honesty, dependability, thoroughness, accuracy,

11 good judgment, and the ability to assume the responsibilities and to conform to the work

12 conditions of employment” (TX 183). CDCR, however, has failed to sufficiently link the use of

13 an invalid SSN for employment purposes to the qualifications required to be a corrections officer.

14

ANALYSIS AND CONCLUSIONS OF LAW

15

TITLE VII

16

Under a Title VII disparate-impact theory, the plaintiff has the burden to prove that a

17 “facially neutral employment practice produces a significant adverse impact on a protected class.”

18 Clady v. Los Angeles County, 770 F.2d 1421, 1427 (9th Cir. 1985). Once the plaintiff establishes

19 prima facie disparate impact, the burden shifts to the employer to prove that there existed a

20 “business necessity,” i.e., “a manifest relationship to the employment in question.” Griggs v.

21 Duke Power Co., 401 U.S. 424, 431–32 (1971). Proving business necessity involves

22 consideration of the Equal Employment Opportunity Commission factors and guidelines, which

23 will be discussed below. If the defendant establishes business necessity, the plaintiff then bears

24 the burden of showing that alternative tests exist that would meet the employer’s legitimate hiring

25 interests as efficiently, without a similarly discriminatory effect. Albermarle Paper Co. v. Moody,

26 422 U.S. 405 (1975). In 1991, Congress codified these decisions in Title VII. 42 U.S.C.

27 2000e–2(k).

28

13

United States District Court For the Northern District of California

1

DISPARATE IMPACT

2

“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as

3 well as, in some cases, practices that are not intended to discriminate but in fact have a

4 disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v.

5 DeStefano, 557 U.S. 577, 577–78 (2009). Under a disparate-impact theory, a plaintiff establishes

6 a prima facie violation by showing that a particular employment practice causes a disparate

7 impact on the basis of race, color, religion, sex, or national origin. Disparate-impact analysis

8 applies to both objective and subjective hiring policies. Rose v. Wells Fargo & Co., 902 F.2d

9 1417, 1424 (9th Cir. 1990).

10

In examining disparate-impact claims, the Supreme Court has held that focusing on the

11 number of minorities otherwise hired or promoted inappropriately ignores the disparate effect of a

12 specific requirement or practice. Thus, the Supreme Court held it inappropriate to focus on the

13 bottom line: “[D]espite their employer’s nondiscriminatory ‘bottom line,’ . . . that ‘bottom line’

14 is no defense to this prima facie case.” Connecticut v. Teal, 457 U.S. 440, 451 (1982). Title VII

15 protects individual minorities, guaranteeing “the opportunity to compete equally.” Ibid. Thus,

16 the fact that Latinos have been hired by CDCR at a disproportionately favorable rate does not bar

17 this suit.

18

To establish prima facie disparate impact, a plaintiff must: “(1) identify the specific

19 employment practices or selection criteria being challenged; (2) show disparate impact; and (3)

20 prove causation.” Ibid. “Plaintiffs generally cannot attack an overall decisionmaking process in

21 the disparate-impact context, but must instead identify the particular element or practice within

22 the process that causes an adverse impact.” Stout v. Potter, 276 F.3d 1118, 1124 (9th Cir. 2002).

23 The plaintiff must provide statistical evidence demonstrating that the challenged employment

24 policy selects applicants of a protected class at a lower rate than their percentage in the applicant

25 pool. Id. at 1122.

26

Guerrero argues that Question 75 has a disproportionate impact on Latinos. (No

27 disparate-treatment claim is presented in this lawsuit.) Guerrero challenges CDCR’s use of

28 Question 75 specifically, and CDCR’s discretion in assessing an applicant’s response (and

14

United States District Court For the Northern District of California

1 explanation) to that particular question. Thus, this order finds that plaintiff has adequately

2 identified a specific practice required for stating a disparate-impact claim, namely routine use of

3 Question 75.

4

In our case, from 2009 to 2014, 23,292 corrections officer applicants entered the

5 background investigation process. Of the 23,292 applicants, 42 responded “Yes” to Question 75.

6 Of the latter, 33 were Latino and nine were non-Latino. Of the 33 Latinos, CDCR cleared

7 fourteen Latinos and withheld nineteen Latinos. Of the nineteen, nine were withheld at least in

8 part because of their prior use of an invalid SSN. Of the nine non-Latinos who responded “Yes”

9 to Question 75, CDCR cleared three non-Latinos and withheld six non-Latinos. CDCR withheld

10 all six non-Latinos without reference to their prior use of an invalid SSN. In other words, all nine

11 of the individuals withheld at least in part on account of prior use of an invalid SSN were Latino.

12 Although the number of Latino applicants who answered “Yes” to Question 75 and the number of

13 those who were withheld constitute a small sample size, plaintiff’s expert witness satisfactorily

14 took this problem into account in his statistical analysis.

15

Plaintiff’s statistical expert, Dr. Marc Bendick, compared the expected Latino

16 representation adversely affected by Question 75 (42.1%) with the actual Latino representation

17 withheld by Question 75 (100.0%). This comparison revealed that Latinos are 2.4 times more

18 likely to be withheld versus their expected representation. Through this statistical analysis, a ratio

19 greater than 1.0 indicates adverse impact. While Dr. Bendick’s analysis assumed that all seven of

20 the applicants withheld in part due to their prior invalid SSN use would have been cleared but for

21 their answers to Question 75 (and thus that Question 75 was the showstopper for all seven), he

22 confirmed that the disparate impact on Latinos would still be statistically significant even if only

23 two of these seven applicants would have been cleared but for their answers to Question 75.

24

CDCR withheld two applicants (including Guerrero) solely because of Question 75.

25 Defendants’ statistical expert, Dr. Michael DuMond, only considered these two applicants in

26 determining whether Question 75 had an adverse impact on Latinos. He did not consider that

27 CDCR withheld seven applicants in part due to their answers to Question 75. At trial, Dr.

28 DuMond conceded that if the use of an invalid SSN was the deciding factor for even two of the

15

United States District Court For the Northern District of California

1 seven applicants withheld in part due to prior invalid SSN use, then Question 75 had a statistically

2 significant adverse impact on Latinos.

3

This order finds that at least two of the seven applicants that CDCR withheld in part due

4 to their invalid SSN use would have been cleared but for the implementation of Question 75.

5 Thus, combined with the two applicants withheld solely based on their invalid SSN use, Question

6 75 served as a showstopper for at least four applicants (all of whom were Latino). This disparate

7 impact was statistically significant, as both plaintiff’s and defendants’ statistical experts

8 conceded. In summary, this order finds CDCR’s facially neutral hiring policy that included

9 Question 75 caused a prima facie disparate impact on Latinos.

10

BUSINESS NECESSITY

11

In Griggs, 401 U.S. at 427, the private employer instituted new policies soon after

12 Congress enacted the Civil Rights Act of 1964. These new policies required applicants to have a

13 high school education or satisfactory scores on two aptitude tests, which substantially affected

14 African-American applicants. The Supreme Court found that the broad aptitude tests and the high

15 school diploma requirement were inadequate “as fixed measures of capability.” Id. at 433.

16 Although the employer argued that the requirements improved “the overall quality of the work

17 force,” evidence demonstrated that employees without these requirements still performed

18 satisfactorily. Id. at 431. Thus, the employer did not show a “demonstrable relationship to

19 successful performance of the jobs for which it was used.” Ibid. An employer must ensure that

20 the hiring policy “measure[s] the person for the job and not the person in the abstract.” Id. at 436.

21

The Supreme Court subsequently declined to rely on “common-sense” based assertions of

22 business necessity, calling instead for empirical evidence to support a hiring policy’s

23 effectiveness. Dothard v. Rawlinson, 433 U.S. 321 (1977). In Dothard, a minimum height and

24 weight requirement for corrections officers had a disparate impact against women. The Board of

25 Corrections argued that the requirements measured the strength required of corrections officers.

26 The Supreme Court rejected this argument, however, as one not sufficiently supported by

27 empirical evidence. The employer must instead produce “evidence correlating the height and

28

16

United States District Court For the Northern District of California

1 weight requirements with the requisite amount of strength thought essential to good job

2 performance.” Id. at 331.

3

Our court of appeals has established a “business necessity” standard higher than a loose

4 “rational basis” standard but less than strict necessity. An employer must show that a

5 pre-employment test that has a disparate impact on a racial minority is “significantly job-related”

6 or serves a legitimate business interest. Contreras v. City of Los Angeles, 656 F.2d 1267, 1276

7 (9th Cir. 1981) (quoting Craig v. County of Los Angeles, 626 F.2d 659, 662 (9th Cir. 1980)). In

8 Contreras, a municipal civil service commission instituted a new senior accountant examination.

9 The plaintiffs there, who already worked for the municipality, had to pass this new examination in

10 order to transfer to a newly created department. They alleged that the examination discriminated

11 against Spanish-surnamed applicants. Our court of appeals held that an employer “must

12 demonstrate a significant relation between the challenged selection device or criteria and the

13 important elements of the job or training program, not merely some ‘rational basis’ for the

14 challenged practice.” The employer “need not establish a perfect positive correlation between the

15 selection criteria and the important elements of work.” Contreras further specified that the

16 “employer’s burden is met with less than proof of absolute business necessity.” Ibid. An

17 employer can satisfy its burden by proving that a screening device is “significantly correlated”

18 with or predictive of important elements of the job. Id. at 1277, 1280.

19

The Eighth Circuit has held that even where criminal convictions are concerned, an

20 employer cannot implement “a sweeping disqualification for employment resting solely on past

21 behavior . . . where that employment practice has a disproportionate racial impact and rests upon

22 a tenuous or insubstantial basis.” Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1296 (8th Cir.

23 1975). In Green, the employer disqualified any applicant convicted of a crime other than a minor

24 traffic offense. The plaintiff, who had been convicted for refusing military induction three years

25 prior, argued that this absolute bar had a disparate impact on blacks and did not relate to job

26 performance. The employer cited several reasons, such as fear of cargo theft and alleged lack of

27 moral character of persons with convictions, claiming its policy constituted a business necessity.

28 While acknowledging those valid considerations, Green concluded that they did not justify the

17

United States District Court For the Northern District of California

1 across-the-board disqualification. Green instead adopted a case-by-case approach to “business

2 necessity” regarding criminal history. Green laid out three factors to consider: (1) “[t]he time

3 elapsing since the conviction” (2) “the degree of the felon’s rehabilitation, and” (3) “the

4 circumstances under which the crime was committed.” Id. at 1297 (internal quotation marks and

5 citation omitted).

6

The EEOC amended its manual in 1987 to include the three Green factors as part of

7 proving up business necessity. In 2012, it issued further requirements, calling for employers to

8 perform an individual assessment of applicants excluded by the criminal conduct screen. Our

9 court of appeals has not explicitly adopted the Green factors or the EEOC Guidelines. It has,

10 however, held that federal courts should give “great deference” to EEOC guidelines “where there

11 are [no] compelling indications that [they are] wrong.” See e.g., Contreras, 656 F.2d at 1281

12 (citing Griggs, 401 U.S. at 434) (finding that courts should give EEOC guidelines great

13 deference); Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) (en banc) (discussing

14 when courts can depart from the EEOC guidelines). Such “compelling indications” might include

15 “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with

16 earlier and alter pronouncements, and all those factors that give it power to persuade.” Skidmore

17 v. Swift & Co., 323 U.S. 134, 140 (1944).

18

Here, given that use of an invalid SSN to obtain employment creates a disparate impact on

19 Latinos, the basic issue boils down to whether withholding an applicant based on this SSN misuse

20 constitutes a business necessity. The defendant bears the burden of proving this defense. There

21 is no evidence that CDCR properly applied all the Green factors adopted by the EEOC (recency,

22 relevancy, and severity). Instead, the record reveals CDCR conclusively dismissed Guerrero’s

23 application. Consequently, this order finds that CDCR withheld Guerrero’s application in

24 violation of Title VII.

25 This order finds that the EEOC 2012 Enforcement Guidance on the Consideration of
26 Arrest and Criminal Conviction Records is entitled to deference because thoroughness is clearly
27 evident in its consideration, its reasoning is valid, and it is consistent with earlier
28 pronouncements. See Skidmore, 323 U.S. at 140. The EEOC “has well-established guidance

18

United States District Court For the Northern District of California

1 applying Title VII principles to employers’ use of criminal records to screen for employment.”

2 EEOC Enforcement Guidance on the Consideration of Arrest and Criminal Conviction Records,

3 Section II (Apr. 25, 2012). Notably, the EEOC held meetings in 2008 and 2011 to specifically

4 address employer policies on criminal history records in response to the Third Circuit’s El v.

5 SEPTA, which questioned the validity of the EEOC’s 1987 Guidance. The EEOC subsequently

6 updated its guidelines in 2012 regarding criminal record exclusions, building on the Green factors

7 (recency, relevancy, and severity) adopted in 1987 and incorporating recent court decisions and

8 criminological research. Thus, the EEOC Guidance in this context is persuasive and entitled to

9 deference. Although our case does not involve an arrest or criminal conviction, CDCR treated

10 Guerrero’s use of an invalid SSN as criminal conduct and thus this guideline should be applied

11 here.

12

Given that CDCR does not automatically withhold applicants based on their answer to

13 Question 75 and asks for supplemental explanations, CDCR necessarily allows individual

14 assessment of each applicant in determining the “general qualifications of integrity, honesty, good

15 judgment, and accuracy.” This consideration of Question 75 is in line with the EEOC’s most

16 recent emphasis on individualized assessment regarding criminal history exclusions. The

17 question then is whether CDCR individually assessed Guerrero’s application in practice by

18 properly applying the Green factors adopted by the EEOC, despite his answer to Question 75.

19 This order finds that it did not. CDCR argues now that it did an individual assessment, but there

20 is no evidence that CDCR paid anything more than lip service to Guerrero’s circumstances under

21 the EEOC factors.

22 The first EEOC factor in determining the related risk of a specific crime to a specific
23 position is “careful consideration of the nature and gravity of the offense or conduct.” Ibid.
24 “Careful consideration” of the nature of Guerrero’s conduct in relation to the character traits
25 required of a corrections officer demonstrates minimal risk. Guerrero entered the United States
26 with his family at age eleven. At age fifteen, Guerrero sought work in order to help support his
27 family. He invented a social security number (at his parents’ suggestion) in order to obtain
28 employment. Because Guerrero already began working with the invalid SSN as a juvenile, he

19

United States District Court For the Northern District of California

1 had little choice but to continue using the invalid SSN as an adult. The alternative would have

2 been to either stop working or resort to illegal commerce to support his family.

3

It is true that the use of an invalid SSN potentially accumulated work credit for someone

4 else and contravened the public interest by potentially spoiling public records. It is also

5 conceivable that whoever eventually received the SSN in question, in 2004, encountered trouble

6 with his or her own identity due to Guerrero’s misuse of that SSN, although no such actual

7 trouble has been proven herein.

8 On balance, however, Guerrero mitigated much of these potential consequences with his
9 subsequent remedial conduct. Guerrero initially misused the invalid SSN as a juvenile in order to
10 help support his family. When he learned of his true immigration status, he promptly applied to
11 adjust his status. This application sat pending for over ten years, due to agency backlogs. In the
12 meantime, for the sake of consistency, Guerrero carried on with the same SSN to continue
13 employment. Guerrero also obtained a legitimate ITIN and paid taxes with his ITIN until he
14 obtained a valid SSN. When Guerrero became a lawful permanent resident, and thus eligible for
15 an SSN in 2007, he obtained a new, valid SSN almost immediately. He then promptly
16 retroactively amended his taxes from 2004 and 2005 to attribute his income to his new SSN and
17 informed his then-employer of his new SSN. These efforts to cure the harm created by his use of
18 an invalid SSN are commendable and should have been taken into account in CDCR’s
19 assessment.
20
Furthermore, Guerrero’s SSN misuse did not constitute “identity theft” as CDCR claimed. 21
In Flores-Figueroa v. United States, 556 U.S. 646, 656–57 (2009), the Supreme Court held that to 22
prove identity theft under federal law, “the government must show that the defendant knew that 23
the means of identification at issue belonged to another person.” The worst that can be said of 24
Guerrero’s use of an invalid SSN, from a criminal law perspective, is that it potentially violated 25
42 U.S.C. 408(a)(7)(B) (“falsely represent[ing] a number to be the social security account number 26
assigned by the Commissioner of Social Security to him”) and 18 U.S.C. 1546(b)(3) (providing a 27
“false attestation” on an employment form). Even so, our court of appeals has held that these 28

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United States District Court For the Northern District of California

1 crimes (in the social security context) did not constitute crimes of “moral turpitude” for

2 immigration purposes. See Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1185 (9th Cir. 2000).

3

The second EEOC factor looks to “the time that has passed since” the conduct. Neither

4 the EEOC Guidance nor our court of appeals has yet endorsed any particular time frame. This

5 order, however, finds the Third Circuit’s approach in El v. SEPTA instructive: “Title VII . . .

6 require[s] that the policy under review accurately distinguish between applicants that pose an

7 unacceptable level of risk and those that do not.” El v. SEPTA, 479 F.3d 232, 244–45 (3d Cir.

8 2007).

9 There is no indication in the record that Guerrero’s misuse of an SSN under his
10 circumstances “pose[d] an unacceptable level of risk” for CDCR if Guerrero had been placed in a
11 corrections officer position. In El, the employer produced credible expert testimony that former
12 violent criminals, crime-free for many years, still had a slighter higher chance than ordinary
13 citizens to recidivate. In contrast, CDCR has not produced any evidence, expert testimony or
14 otherwise, that previous and corrected SSN misuse six years in the past imposes any discernable
15 danger of “those officers [being] corrupted by inmates to commit serious misconduct that harm
16 public safety.” Nor has CDCR produced any empirical evidence in general that would tie
17 previous SSN misuse to obtain employment to the character traits required of corrections officers.
18 In fact, plaintiff’s expert witness testified (and this order so finds) that there is no heightened risk
19 of recidivism after seven years compared to an ordinary citizen. CDCR did not attempt to rebut
20 this testimony. Thus, given that Guerrero had not used the invalid SSN for six years at the time
21 of his second application, and that he began misusing it as a juvenile, CDCR’s inability to
22 demonstrate an “unacceptable risk” weighs heavily in favor of Guerrero.
23
The third EEOC factor looks to “the nature of the job held or sought.” Question 75 may 24
be useful when CDCR looks to the reason an applicant may be associated with more than one 25
SSN, as it may reveal more serious offenses such as tax evasion or intentional fraud. Such 26
revelations would convincingly bear significant weight for a position giving an employee wide 27
discretion in a prison environment. Such revelations, however, do not apply in Guerrero’s case. 28

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United States District Court For the Northern District of California

1 Guerrero has never been guilty of tax evasion or intentional fraud. Guerrero’s SSN misuse, while

2 a negative, was a minor negative. CDCR has not met its burden of effectively linking Guerrero’s

3 SSN misuse to the ability to maintain integrity, honesty, and good judgment as a corrections

4 officer.

5

Taking all three EEOC factors into account (recency, relevancy and severity) in the

6 business necessity analysis, this order finds that CDCR violated Title VII by failing to apply the

7 EEOC guidelines in Guerrero’s case. This order further finds that SPB violated Title VII in

8 handling Guerrero’s appeal. CDCR’s and SPB’s inadequate assessment is further evidenced by

9 their reliance on mistaken assumptions, such as the belief that ITINs can be used for employment

10 purposes, that use of both an ITIN and a SSN somehow showed unlawful conduct, and the

11 statement that Guerrero had committed identity theft. Nor have defendants proven that

12 Guerrero’s SSN misuse is “significantly job-related” to the corrections officer position. Rather

13 than individually assessing Guerrero’s application and properly weighing all relevant factors,

14 defendants inappropriately used Question 75 as a showstopper.

15 In sum, CDCR has a legitimate business interest in determining whether a corrections
16 officer applicant has the requisite character traits, and Question 75 can serve this purpose. But
17 because Question 75 has a disparate impact on Latinos, CDCR can use Question 75 only if it also
18 considers the three EEOC factors and since it did not in Guerrero’s case, CDCR erred. This order
19 does not find anything in the record that would indicate that Guerrero embodied an unqualified —
20 or even a less qualified — applicant. Thus, CDCR’s effectively single-issue withhold based on
21 Question 75 amounted to an “arbitrary . . . barrier to employment” in violation of Title VII.
22 Griggs, 401 U.S. at 431.
23
EQUAL PROTECTION 24

25

“Proof of racially discriminatory intent or purpose is required to show a violation of the

26 Equal Protection Clause.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

27 252, 265 (1977). “Necessarily, an invidious discriminatory purpose may often be inferred from

28 the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on

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United States District Court For the Northern District of California

1 one race than another.” Washington v. Davis, 426 U.S. 229, 242 (1976). Disparate impact alone,

2 however, “does not trigger the rule . . . that racial classifications are to be subjected to the strictest

3 scrutiny and are justifiable only by the weightiest of considerations.” Ibid.

4

Here, plaintiff did not make a prima facie case of discriminatory purpose. Although

5 disparate impact can be circumstantial evidence of discriminatory purpose, its weight in this case

6 is attenuated by the “totality of the relevant facts.” Ibid. Nothing in the record indicated that

7 CDCR used facially-neutral Question 75 as “a purposeful device to discriminate” against Latinos.

8 Ibid. Thus, plaintiff insufficiently demonstrated discriminatory purpose.

9 Disparate impact alone does not trigger strict scrutiny. Accordingly, this order finds that
10 CDCR had a rational basis for including Question 75 in its background investigation. First,
11 CDCR had a legitimate reason for inquiring into applicants’ history, as corrections officers are
12 given wide discretion in a prison environment. Neither party disputes that honesty, integrity, and
13 good judgment are important character traits for such a position. Prior use of an invalid SSN by
14 itself is rationally probative of these character traits. Second, Question 75 supplies a further
15 avenue for investigative follow-up by supplying another SSN used by the applicant that could
16 lead to probative information and life experiences. By requiring supplemental explanations,
17 CDCR can use the question to uncover other offenses related to prior SSN misuse and to more
18 accurately trace an applicant’s identity. Thus, because Question 75 was facially neutral and
19 rationally served legitimate interests, CDCR did not violate the Equal Protection Clause. That
20 claim is DISMISSED.
21
CONCLUSION 22

23

To the extent stated herein, Guerrero’s Title VII claims against CDCR and SPB are

24 GRANTED. Guerrero’s equal protection claim is DISMISSED. Nothing in this order prohibits use

25 of Question 75 so long as the disparate impact is ameliorated by individualized use of the EEOC

26 factors. Please attend another hearing on SEPTEMBER 24, 2015, AT EIGHT A.M., to determine the

27 extent of relief. Plaintiff shall please file a brief summarizing his requested relief by AUGUST 27.

28

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United States District Court For the Northern District of California

1 Defendants shall please respond by SEPTEMBER 10. No replies. In the meantime, all parties shall

2 return to Magistrate Judge Donna Ryu for further mediation.

3

4 IT IS SO ORDERED.
5

6 7 Dated: July 21, 2015. 8 9

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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United States District Court For the Northern District of California

1 APPENDIX OF SUMMARIES OF APPLICANTS THAT CDCR WITHHELD IN WHOLE OR IN PART DUE TO THEIR PRIOR USE OF AN INVALID SSN
2

3

1. CDCR withheld C.R. in 2012 in whole because he used an invalid SSN from

4 1988 to between 2004 and 2006. Upon entering the United States without documentation, C.R.

5 purchased an invalid SSN and green card for $50 so he could obtain employment. A former

6 employer, nonetheless, fired C.R. because he could not provide proper and valid

7 documentation to work. Moreover, the government suspended his drivers license because he

8 did not have a valid SSN. The withhold letter stated: “[Y]ou fraudulently obtained legal

9 documents in order to gain employment while you were an illegal resident in the United States

10 of America. Your actions reflect your poor judgment and a general disregard for the law that

11 extended over a duration of approximately sixteen years. This pattern of irresponsibility raises

12 concerns . . . ” Although CDCR only cited the above reason in the withhold letter, the

13 background investigation also revealed that in 2003, C.R. pled guilty to willful cruelty to a

14 child, after his ex-wife accused him of molesting his oldest daughter. On his Background

15 Investigation Questionnaire, C.R. revealed that he had been fired more than twice and had been

16 disqualified from the Los Angeles Police Department due to his record.

17

2. C.R.’s withhold letter and file suggest that CDCR did not properly weigh the

18 EEOC factors when withholding him because of his SSN misuse. In its withhold letter, CDCR

19 cited the length of misconduct but failed to properly weigh mitigating factors: C.R. stopped

20 using the invalid SSN when he became a legal resident and only used the invalid number for

21 employment purposes, thus demonstrating minimal risk. CDCR also failed to consider that the

22 harm caused by the conduct was likely insignificant. Nor did CDCR apply the second EEOC

23 factor, recency. In C.R.’s withhold letter and internal discrepancy note, CDCR did not

24 calculate the time that had elapsed — approximately eight years — since C.R.’s conduct.

25 Because C.R. only used an invalid SSN for employment purposes, CDCR failed to effectively

26 connect C.R.’s conduct to his ability to maintain integrity, honesty, and good judgment as a

27 corrections officer (TX 183).

28

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United States District Court For the Northern District of California

1

3. CDCR withheld F.J. in 2014 because he had previously used an invalid SSN,

2 alias, and fake ID. F.J., who was born in the United States and thus a citizen, used an invalid

3 SSN at age seventeen or eighteen, approximately fifteen years prior to applying to CDCR. On

4 his application, F.J. said he used the invalid SSN at a young age to get a job. During his pre-

5 investigatory interview, however, he admitted that he used the invalid number so that his

6 mother could continue to claim him as a dependent. The investigator concluded that F.J.

7 lacked integrity and honesty, as “he knowingly and willingly committed fraud for the financial

8 benefit of him and/or his mother (evading taxes).” The withhold letter also cited that during

9 his interview, F.J. admitted to using an alias but failed to disclose it on his personal history

10 statement. The letter stated: “Your failure to provide accurate information . . . as well as your

11 unwillingness to be forthright . . . indicate you do not possess the general qualifications”

12 required to serve as a peace officer with CDCR.

13

4. In F.J.’s withhold letter, CDCR cited the nature and gravity of the offense,

14 fraud and tax evasion. The file does not indicate, however, that CDCR considered mitigating

15 factors. F.J. was seventeen or eighteen at the time of his SSN misuse. Moreover, CDCR failed

16 to consider recency, or lack thereof. Approximately fifteen years had elapsed. Although

17 CDCR may be justified in withholding an applicant for tax fraud, which this order need not

18 decide, a review of F.J.’s file does not indicate that CDCR applied all three EEOC factors

19 properly (TX 81, 190).

20 5. CDCR withheld J.M.(2) (the files contained multiple applicants with the initials
21 J.M.) in 2011 for failing to register for the selective service, lying about why he did not
22 register, and using an invalid identification and an invalid social security card to gain
23 fraudulent employment. J.M.(2) stated that he did not register for the selective service because
24 he immigrated to the United States at age 26; however, documents and information — his
25 education, marriage certificate, list of residences, and misdemeanor record (DUI and driving
26 with a suspended licence) — disclosed by the applicant revealed that he was in the United
27 States before age 26. J.M.(2) admitted that, in 1991 at age seventeen, he used his brother’s
28 name and birth certificate to obtain a California identification card so that he could work and

26

United States District Court For the Northern District of California

1 support his family in Mexico. J.M.(2) stated that he paid income taxes yearly using the invalid

2 SSN.

3

6. In withholding J.M.(2), CDCR did not appropriately apply the three EEOC

4 factors. He began using an invalid SSN as a juvenile for employment purposes only, “did [his]

5 income tax year by year,” and ceased using an invalid number once the government issued him

6 a valid SSN. Moreover, in an internal discrepancy notice, CDCR acknowledged yet dismissed

7 the lack of recency, clearly ignoring the EEOC guidelines: “Although these issues [use of an

8 invalid SSN to obtain work for eight years and use of his brother’s name] may not be recent, it

9 reflects poor judgment and non-abeyance of the law. These issues are relevant and the

10 applicant is unsuitability [sic] for a peace officer position, with this Department, at this time.”

11 Given the nature of J.M.(2)’s conduct, CDCR did not effectively link the SSN misuse to the

12 candidate’s ability to maintain integrity, honesty, and good judgment as a corrections officer

13 (TX 192).

14 7. CDCR withheld M.R. in 2007 without mention of using an invalid SSN and
15 again in 2011 in part because he used an invalid SSN. In the 2007 withhold letter, CDCR
16 concluded that M.R. was unsuitable and omitted pertinent information. The 2006 “possible
17 withhold recommendation,” approved in 2007, stated: “Disclosed with [Riverside Sherif’s
18 Office] filing invalid claim of work comp. in 1986, also disclosed giving his last name to a
19 child who was not his in addition, signed immigration documents for him as an adult in 2004.
20 This information was not disclosed on CDCR PHS.” In the late 1970s, M.R. gave his last
21 name to his girlfriend’s son. Subsequently, in 2004, M.R. signed INS papers for the child, then
22 an adult, falsely claiming that he was M.R.’s son. Additionally, M.R. failed to list one of
23 several agencies he had applied to that required a background check. As stated on a CDCR
24 discrepancy notice, M.R. did not disclose his termination from the United States Postal Service
25 (USPS) in 1993.
26
8. In 2011, the CDCR again found M.R. unsuitable because he falsified INS 27
documents (falsely claiming someone as his son), received fraudulent benefits, used an invalid 28

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United States District Court For the Northern District of California

1 SSN number, and failed to complete the background materials as instructed. The withhold

2 letter also cited that M.R. failed to disclose that he had fraudulently filed and received

3 worker’s compensation in 1986. M.R. used an invalid SSN for a short time to work before

4 becoming a resident alien and subsequently a citizen in 1987, over two decades prior to

5 applying. CDCR also noted on the withhold letter that M.R. failed to disclose the name of his

6 former spouse, as indicated on a prior application. According to the 2011 withhold letter, M.R.

7 previously applied to CDCR in 2003, when he also neglected to report his 1986 worker’s

8 compensation claim.

9

9. Examination of the first EEOC factor, severity, weighs in M.R.’s favor,

10 contrary to CDCR’s findings. M.R. only used the invalid SSN for a brief period of time for

11 employment purposes. CDCR also failed to consider the second EEOC factor, recency. M.R.

12 had not used an invalid number for over two decades. Despite the circumstances surrounding

13 M.R.’s misconduct, CDCR concluded that he “lack[ed] many of the necessary qualifications

14 outlined in SPB Rule 172 including integrity, honesty, thoroughness, accuracy, good judgment

15 and the ability to assume the responsibilities and conform to the conditions of work

16 characteristic of a Peace Officer at this time” (TX 189, 223).

17 10. E.N. immigrated to the United States at age three. CDCR withheld him from
18 the corrections officer and youth corrections officer positions in 2010 and again in 2012. An
19 investigation worksheet showed that CDCR withheld E.N. in 2010 because he used a false
20 identification prior to naturalization and exhibited illegal behavior. The 2010 and 2012
21 withhold letters, nearly identical, both stated: “You have disclosed fraudulent use of legal
22 documents, embezzlement of goods entrusted to you from two employers, purchasing property
23 you assumed was stolen, forgery and theft.” E.N. used an invalid SSN and false identification,
24 purchased by his mother, for employment purposes twice from December 2004–November
25 2007. E.N., however, always used his personal information. Investigative records also showed
26 that E.N. filed taxes while using the invalid SSN. On his 2010 application, E.N. stated: “They
27 were only used for employment purposes, I DID NOT USE someone else’s identity, I used my
28 information, The Social Security was [sic] Non-existing.” E.N. admitted to taking a discarded

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United States District Court For the Northern District of California

1 dog house on one occasion and to taking broken, unsalable merchandise or parts four times

2 from work; CDCR determined these incidents to be “recent and severe,” as written in a related

3 discrepancy notice. The withhold letter also cited several illegal acts that occurred before E.N.

4 turned 18: At age thirteen (2012 letter) or fourteen (2010 letter), E.N. purchased pirated

5 movies and video games, which he assumed were stolen, from his cousin. He forged his

6 mother’s name twice when in highschool to excuse his tardiness. At age fifteen, E.N. stole $15

7 worth of goods, which he disclosed on his 2010 but not 2012 CDCR application. An internal

8 discrepancy notice described E.N.’s purchase of pirated movies as “not recent, but added to

9 reflect the pattern of negative behavior.”

10

11. On an internal discrepancy notice dated August 2012, CDCR noted E.N.’s use

11 of an invalid SSN and determined: “The applicant has exhibited a pattern of not abiding by the

12 law. The applicant admitted to using fraudulent legal documents[, a fake photo ID and invalid

13 social security card,] to gain employment in the United States. These matters are both recent

14 and relevant to the position for which the applicant has applied. Rx Withhold.” CDCR noted

15 the “recency” (approximately five years prior) of the conduct, concluding that it cut against

16 E.N. CDCR, however, did not appropriately weigh the nature and gravity of the offense. On

17 balance, the severity of E.N.’s conduct was minimal: His mother purchased the invalid SSN;

18 he only used the invalid number for employment purposes; he used his own information, thus

19 not committing identity theft or harming another; and he filed taxes using the “I-10-10” form

20 from 2004–2007. Moreover, E.N. explained that he used a number that did not belong to

21 anyone and stopped using it as soon as he obtained legal residency. Given the circumstances

22 surrounding E.N’s use of the invalid SSN, CDCR neither sufficiently considered the EEOC

23 factors nor connected E.N.’s conduct with his ability to serve as a corrections officer (TX 82,

24 83, 185).

25 12. CDCR withheld J.M.(1) in 2014 for failing to comply with legal obligations,
26 omitting pertinent information (e.g., violation of a court order), and fraudulently obtaining
27 legal documents to secure employment. As an undocumented juvenile (sixteen to seventeen
28 years old), over a decade prior to his CDCR application, J.M.(1) used an invalid SSN for a

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United States District Court For the Northern District of California

1 work program for students. J.M.(1) admitted that he failed to report his income to the IRS and

2 did not pay taxes from 2004–2008. The withhold letter noted that J.M.(1) worked five

3 different jobs from age eighteen to his naturalization. The letter also cited that J.M.(1)

4 collected unemployment while working side-jobs. During his military service in 2001, police

5 pulled over J.M.(1) for driving while intoxicated and arrested him for underage drinking.

6 J.M.(1) also failed to include pertinent information on his CDCR application: He neglected to

7 disclose a motor vehicle accident that occurred within the past seven years. He also failed to

8 notify CDCR that he violated a court order in 2006: J.M.(1) was charged with child abduction

9 and ultimately held in contempt of the court for failing to comply with the custody order when

10 his ex-wife threatened to leave the country with his daughter. Moreover, J.M.(1) did not tell

11 CDCR that police questioned him in 1997 for possession of a BB gun. J.M.(1) explained that

12 he did not reveal his contact with the police because it was minor, he did not recall the

13 incident, or he did not know how to input the information into CDCR’s questionnaire.

14

13. CDCR did not adequately apply the three EEOC factors in assessing J.M.(1)’s

15 use of an invalid social security card. J.M.(1) disclosed that he used an invalid card as a

16 juvenile for employment purposes only. The withhold letter, however, noted that he worked

17 five jobs from age eighteen to his naturalization, which is outside the time period of J.M.(1)’s

18 conduct. J.M.(1)’s withhold letter and file suggest that CDCR did not consider such mitigating

19 factors (his status as a juvenile at the time of conduct and the lack of recency). Given the

20 circumstances surrounding J.M.(1)’s conduct, his use of an invalid card bears little weight on

21 his ability to conduct himself with honesty, integrity, and good judgment as a corrections

22 officer (TX 85, 211).

23 14. CDCR withheld R.A.(1) (there were multiple applicants with the initials R.A.)
24 in 2011 and he reapplied in 2014. The status of his latter application is unclear from the
25 record. The withhold letter stated that R.A.(1) used a fake SSN to obtain employment from
26 1989–1993, when he was approximately fifteen to nineteen years old. He failed to file taxes
27 from 1989–2000 because of his undocumented status. R.A.(1), however, subsequently paid his
28 taxes back to 1997. In the letter, CDCR wrote: “For many years, you were an illegal alien in

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United States District Court For the Northern District of California

1 this country. You intentionally committed additional illegal acts by using fraudulent Social

2 Security numbers to gain employment, and failed to file income taxes for over twelve years.”

3 The withhold letter also cited R.A.(1)’s negative military record as a reason for his

4 disqualification. In October 2001, while in the United States Army National Guard, R.A.(1)

5 did not show up to the duty station for training because he had to handle a personal obligation

6 related to his naturalization process. A warrant subsequently issued. R.A.(1) turned himself

7 into police and spent approximately two-and-a-half weeks in jail. R.A.(1) received less than an

8 honorable discharge, but later re-enlisted in the Army. In January 2004, he altered an

9 authorization slip from one of his drill sergeants to see the doctor for a neck injury; R.A.(1)

10 obtained the required slip but neglected to bring it to the appointment, so he forged an expired

11 one. In June 2004, R.A.(1) resigned from his civilian job at Copy Station because he suffered

12 from a panic disorder, and in June 2005, he received an honorable discharge from the Army

13 due to his medical condition. CDCR also pointed to R.A.(1)’s resignation from the Border

14 Control as a reason for his withhold. In 2007, after his supervisor discovered that R.A.(1)’s

15 wife did not possess legal status, R.A.(1) quit. CDCR questioned whether R.A.(1) resigned to

16 avoid an ensuing investigation or to accompany his wife to Mexico to complete her

17 immigration process. Previously, in 2009, R.A.(1) applied to CDCR but did not take any

18 written or physical tests or complete the background investigation (TX 78, 176).

19

15. CDCR has failed to show that it appropriately took all three EEOC factors into

20 consideration with regard to R.A.(1)’s SSN misuse. CDCR did not adequately examine the

21 severity of the offense. Nor the recency. On balance, the gravity of R.A.(1)’s conduct was

22 minimal: He made up a SSN as a juvenile and continued to use the number as a young adult in

23 order to gain employment. On his 2011 Background Investigation Questionnaire, he explained

24 that his father and one of his father’s friends invented the invalid number and completed the

25 employment application for him in 1989. R.A.(1) stopped using the invalid number

26 approximately eight years before he first applied. Thus, CDCR did not adequately show a

27 connection between the conduct and characteristics required of a corrections officer.

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1

16. CDCR withheld D.F. in 2011 and again in 2014. D.F. appealed CDCR’s 2011

2 findings. The 2011 withhold letter cited D.F.’s possible use of an invalid SSN in 1986 or

3 1987, over two decades prior to his application, to obtain employment; failure to disclose

4 court-ordered child support; and use of an alias and invalid SSN in 2001. DF also had a

5 restraining order entered against him due to a dispute with a friend. In his application, D.F.

6 said that he had never been ordered to pay child support; however, a background investigation

7 revealed that a court ordered him to pay support in 2001. In his appeal letter, D.F. explained

8 that he understood the question regarding child support to apply only to when the divorce had

9 been finalized. Moreover, he stated that he never used an alias or fake SSN in 2001 and

10 remained concerned that he was a victim of identity theft. SPB denied D.F.’s appeal. On his

11 subsequent application, D.F. attributed the alias and SSN used in 2001 to a court error (TX

12 207).

13

17. CDCR again withheld D.F. in 2014. The withhold letter highlighted several

14 reasons for CDCR’s decision: use of an invalid SSN and false documents in 1986–1988 to

15 gain employment; failure to file taxes while using the invalid SSN; misrepresentation on two

16 previous job applications; and delinquent student loans. CDCR’s internal discrepancy notice

17 and investigation worksheet noted that the applicant owed $969.00 on his student loan. In the

18 withhold letter, the investigator wrote: “You have admitted to using a made up Social Security

19 number and have not paid taxes for these years. As well as using this number to gain

20 identification. These voluntary admissions are quite alarming. Peace Officer applicants are

21 required to possess certain qualities such as honesty and integrity. You have failed to show

22 these characteristics.” (TX 208, 218).

23 18. CDCR’s characterization of D.F.’s use of an invalid SSN as “quite alarming”
24 and withhold of his application demonstrate that CDCR did not fully apply the EEOC factors.
25 An individual assessment and careful consideration would have revealed mitigating
26 circumstances. D.F. used the invalid number in 1986 or 1987 (according to his 2011 withhold
27 letter) or from 1986–1988 (according to his 2014 withhold letter) “in order to get paid and eat”
28 and to establish identity. This is a short period of time over two decades prior to his first

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1 CDCR application. He subsequently attempted to cure his mistake. “I visited the social 2 security office on 12/13/13 to request information on the social security number . . . I did pay 3 taxes on that number but I failed to do my yearly income tax return. When I received my 4 personal social security number I began using my number and doing my yearly income tax as 5 mandate [sic] by law” (TX 208, 218). In sum, CDCR failed to appropriately evaluate the 6 nature and lack of recency of D.F.’s conduct. CDCR has not shown a “demonstrable 7 relationship to successful performance of the job.” U.S. EQUAL EMP’T OPPORTUNITY 8 COMM’N, EEOC ENFORCEMENT GUIDANCE. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
33

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 VICTOR GUERRERO,

United States District Court For the Northern District of California

11

Plaintiff,

No. C 13-05671 WHA

12 v.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION;
14 STATE PERSONNEL BOARD; et al.,

JUDGMENT

15

Defendants.

/

16

17

For the reasons stated in the accompanying order granting relief, FINAL JUDGMENT IS

18 HEREBY ENTERED in favor of plaintiff and against defendants. The Clerk SHALL CLOSE THE

19 FILE.

20

21

IT IS SO ORDERED.

22

23 Dated: September 28, 2015. 24

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

25

26

27

28

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

United States District Court For the Northern District of California

10 VICTOR GUERRERO,

11

Plaintiff,

12

v.

13 CALIFORNIA DEPARTMENT OF

14

CORRECTIONS AND REHABILITATION; STATE PERSONNEL BOARD,

15

Defendants.

16

/

No. C 13-05671 WHA
ORDER RE ATTORNEY'S FEES AND COSTS

17

1. Plaintiff Victor Guerrero won on his Title VII claim at trial and judgment was

18 entered in his favor on that claim (Dkt. No. 278). As conceded in defendants CDCR and SPB’s

19 opposition to plaintiff’s motion for attorney’s fees and costs, plaintiff is entitled to recover a

20 reasonable amount of attorney’s fees and costs based on his victory.

21

2. The following procedure will be used to determine the amount of an award

22 herein. It will be structured to allow meaningful evaluation of the time expended.

23

3. No later than DECEMBER 11, 2015, plaintiff’s attorneys must file and serve a

24 detailed declaration, organized by discrete projects, breaking down all attorney and paralegal

25 time sought to be recovered. For each project, there must be a detailed description of the work,

26 giving the date, hours expended, attorney name, and task for each work entry, in chronological

27 order. A “project” means a deposition, a motion, a witness interview, and so forth. It does not

28 mean generalized statements like “trial preparation” or “attended trial.” It includes discrete

United States District Court For the Northern District of California

1 items like “prepare supplemental trial brief on issue X.” The following is an example of time

2 collected by a project.

3

PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO)

4 Date 5

Time- Description keeper

Hours x Rate = Fee

6 01-08-01 XYZ Assemble and photocopy exhibits for 2.0

use in deposition. 7

01-09-01 RST Review evidence and prepare to

4.5

8

examine ABC at deposition.

$100 $200 $200 $900

9 01-10-01 XYZ Research issue of work-product privilege asserted by deponent.
10 01-11-01 RST Prepare for and take deposition.
11 01-12-01 RST Prepare for and take deposition.

1.5

$100 $150

8.5

$200 $1700

7.0

$200 $1400

12

Project Total:

23.5

$4350

13

4. All entries for a given project must be presented chronologically one after the

14 other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily

15 grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down for

16 inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in the

17 example above, and show grand totals for all projects combined at the end. Include only entries

18 for which compensation is sought, i.e., after application of “billing judgment.” For each

19 project, the declaration must further state, in percentage terms, the proportion of the project

20 directed at issues for which fees are awardable and must justify the percentage. This percentage

21 should then be applied against the project total to isolate the recoverable portion (a step not

22 shown in the example above).

23

5. A separate summary chart of total time and fees sought per individual

24 timekeeper (not broken down by project) should also be shown at the end of the declaration.

25 This cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the

26 overall case.

27

6. The declaration must also set forth (a) the qualifications, experience and role of

28 each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for

2

United States District Court For the Northern District of California

1 each in the relevant time period; (c) how the rates were comparable to prevailing rates in the

2 community for like-skilled professionals; and (d) proof that “billing judgment” was exercised.

3 On the latter point, as before, the declaration should describe adjustments made to eliminate

4 duplication, excess, associate-turnover expense, and so forth. These adjustments need not be

5 itemized but totals for the amount deleted per timekeeper should be stated. The declaration

6 must identify the records used to compile the entries and, specifically, state whether and the

7 extent to which the records were contemporaneous versus retroactively prepared. It must state

8 the extent to which any entries include estimates (and what any estimates were based on).

9 Estimates and/or use of retroactively-made records may or may not be allowed, depending on

10 the facts and circumstances.

11

7. Ordinarily, no more than one attorney and one paralegal need be present at a

12 deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney

13 need attend a law-and-motion hearing; more will normally be deemed excessive. To allow for

14 symmetry, however, the award will take into account the staffing used by the opposing party.

15

8. If the opposing party doubts the accuracy of the declaration, then the moving

16 party must immediately produce the original underlying time records for inspection upon

17 request. The opposing party must then file and serve any opposition. In this case, the

18 opposition will be due FOURTEEN CALENDAR DAYS after plaintiff’s detailed declaration is filed.

19 If the opposing party contends that any item or project was excessive, then the opposition must

20 explain why and provide a declaration setting forth completely all time expended by the

21 opposing party on the same and on similar projects, in the same format described above, so that

22 symmetry may be considered, making available the underlying records for inspection if

23 requested. If any billing rates are challenged, then the opposition must state the billing rates

24 charged to the opposing party for all professionals representing the opposing party in the case

25 and their experience levels. The opposing declaration must also state, as to each project, the

26 percentage of the project the opposition contends was directed at issues on which fees are

27 awardable, stating reasons for the percentage. This percentage should then be applied against

28 the project total to isolate the recoverable portion.

3

United States District Court For the Northern District of California

1

9. The opposing submissions may not simply attack the numbers in the application.

2 It must also set forth a counter-analysis. The counter-analysis should be in the same format

3 required of the applicant, arriving at a final number. The opposition must clearly identify each

4 line item in the application challenged as excessive, improper or otherwise unrecoverable and

5 explain why. The opposition, for example, may annotate (legible handwriting will be

6 acceptable) the applicant’s declaration to isolate the precise numbers at issue.

7

10. With the benefit of both sides’ filings, representatives of the parties with final

8 decision authority shall meet in person and confer to try to resolve all differences as to the

9 amount. If no agreement is reached, the moving party must file and serve a declaration showing

10 full compliance with this paragraph, explaining when, where and who met, their decision

11 authority, how long they met, what documents were reviewed together, and the principal points

12 of disagreement. This must be done within 28 CALENDAR DAYS of the filing of movant’s

13 detailed declaration.

14

11. If no agreement is reached, a special master shall be appointed. If the parties

15 cannot agree on a special master, then the Court shall select a special master. The parties must

16 so advise the Court on this within 28 CALENDAR DAYS of the filing of movant’s detailed

17 declaration.

18

12. The special master shall have all the powers set forth in FRCP 53(c) and

19 FRCP 54(d)(2)(D). The parties shall provide the special master with copies of all motion

20 papers and other documents relevant to this dispute. The special master shall review the briefs

21 and declarations by the parties on the pending motion, hear argument, and then determine a

22 reasonable amount to award, including any fees on fees. The special master shall also

23 determine the extent to which any discovery should be permitted — with the caution that further

24 discovery should be the exception and not the rule. The special master shall then prepare and

25 file a report on recommended findings and amount.

26

13. Absent any supplementation allowed by the special master, the foregoing

27 submissions (together with the briefs already filed) shall be the entire record for the motion.

28 There will be no replies unless allowed later by the special master. Any further submissions for

4

United States District Court For the Northern District of California

1 the special master’s use should not be filed with the Court. If objections are later made to the

2 special master’s report, the objecting party must file a declaration submitting to the Court a

3 complete appendix of relevant communications with the special master.

4

14. The Court will allocate the fees of the special master in a fair and reasonable

5 manner, taking into account the reasonableness of the parties’ respective positions and the

6 special master’s recommendation in this regard. If the movant must pay, then the special

7 master’s compensation shall be deducted from the attorney’s fee award. If the opposing party

8 must pay the special master, then it shall pay the special master and pay the award. The Court

9 will, however, reserve final judgment on allocation of the expense of the special master until a

10 final determination of the fee issue. A final award shall then be entered.

11

15. Costs will be determined in strict compliance with the local rules. If a review is

12 sought regarding taxable costs, then the issue may also be referred to a special master (or may

13 not).

14

16. The hearing set for December 17 is VACATED.

15

16

IT IS SO ORDERED.

17

18 Dated: November 23, 2015. 19

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

28

5

 
 Case 3:13-cv-05671-WHA Document 360 Filed 06/16/16 Page 1 of 5

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 VICTOR GUERRERO,

11

Plaintiff,

12

v.

13 CALIFORNIA DEPARTMENT OF

14

CORRECTIONS AND REHABILITATION; STATE PERSONNEL BOARD,

15

Defendants.

16

/

No. C 13-05671 WHA
ORDER RESOLVING OBJECTIONS, ADOPTING SPECIAL MASTER’S REPORT AND RECOMMENDATION WITH ONE MODIFICATION, AND FIXING COMPENSATION

17

INTRODUCTION

18

In this Title VII challenge, plaintiff moved for attorney’s fees and expenses. A prior

19 order held that plaintiff was entitled to a reasonable amount of attorney’s fees and costs based

20 on his victory (Dkt. No. 313). The special master then issued a report and recommendation

21 regarding the amount of the award. This order resolves the pending objections and adopts the

22 special master’s report and recommendation with one modification.

23

STATEMENT

24

The history of this action has been summarized in prior orders and will not be repeated

25 herein (Dkt. No. 277). In short, after a six-day bench trial, an order found that defendants had

26 violated Title VII by discriminating against plaintiff, a Latino job applicant, based on his

27 previous use of an invalid social security number. Plaintiff filed his motion for attorney’s fees

28 and expenses on October 30, 2015 (Dkt. 296). An order appointed Attorney Christina Chen as

the special master under Rules 53 and 54.

Case 3:13-cv-05671-WHA Document 360 Filed 06/16/16 Page 2 of 5

United States District Court For the Northern District of California

1

The special master reviewed the parties’ submissions and allowed supplemental

2 submissions. The special master then filed a 73-page report regarding attorney’s fees and

3 expenses (Dkt. No. 352).

4

In short, plaintiff sought $1,621,776.15 in attorney’s fees (including fees on fees),

5 $22,469.61 in statutory costs, and $145,972.86 in non-statutory litigation expenses. Defendants

6 contended the attorney’s fees should be reduced to $279,265. The special master recommended

7 an award of $1,186,307.70 in attorney’s fees, $20,569.01 in statutory costs, $145,972.86 in

8 non-statutory litigation expenses, and $50,717.12 of fees-on-fees. This recommendation

9 reflected a 15 percent reduction to the lodestar, which the report concluded was appropriate

10 given that plaintiff had achieved “good — but not excellent — overall results when viewed in

11 relation to the 3,000+ hours claimed” (id. at 1-2, 62).

12

The special master submitted an invoice for her fees and recommended a 50-50

13 allocation of her fees between defendants and plaintiff. The report also recommended staying

14 any award of reasonable attorney’s fees, costs, and expenses until after all appeals had been

15 exhausted.

16

On May 12, 2016, the California Department of Corrections and Rehabilitation (CDCR)

17 moved to modify the special master’s recommendation. The California State

18 Personnel Board (SPB) and plaintiff lodged objections.

19

ANALYSIS

20 1.

DEFENDANTS’ OBJECTIONS.

21

Defendants object to the recommended 15 percent reduction of the lodestar, arguing a

22 further reduction is warranted. Defendants assert that a 35 percent reduction is warranted due to

23 plaintiff’s limited success.

24

First, defendants argue that a further reduction is warranted because plaintiff could have

25 obtained the same individual relief in state court. In response, plaintiff argues that defendants

26 failed to properly raise this argument in their original oppositions to plaintiff’s motion for

27

28

2

Case 3:13-cv-05671-WHA Document 360 Filed 06/16/16 Page 3 of 5

United States District Court For the Northern District of California

1 attorney’s fees, thereby forfeiting this argument. This order agrees.1 Furthermore, CDCR

2 proffers no authority for the conclusion that a fee reduction is appropriate because plaintiff

3 could have obtained the same relief in state court. Moreover, the assertion is speculative;

4 ascertaining whether plaintiff could have obtained the same relief in state court is beyond the

5 purview of this motion. This objection is therefore OVERRULED.

6

Second, defendants argue a further reduction is warranted because the success achieved

7 by plaintiff was limited in comparison to the scope of the litigation as a whole. The report

8 acknowledged that reaching a fair and appropriate percentage for the lodestar reduction here

9 was “tricky” (Dkt. 352 at 65). The report concluded that a 15 percent reduction was warranted

10 because plaintiff obtained “make-whole equitable relief” but not “broad systemic reforms.” The

11 report noted the absence of on-point case law for our situation. Nonetheless, the recommended

12 reduction is appropriate given other holdings in our Circuit (id. at 61-64). This order finds the

13 special master’s recommendation reasonable. Defendants’ objection is OVERRULED.

14

Third, SPB objects to the special master’s conclusion that the unsuccessful due process

15 claims were related to the successful Title VII claims. SPB’s arguments, however, are

16 unpersuasive. Prior orders on the Title VII claim made specific findings related to the process

17 SPB provided to plaintiff. For example, an order concluded that SPB had failed to individually

18 assess plaintiff’s application or properly weigh all relevant factors (Dkt. 263). The Title VII

19 claim covered the same factual territory as the due process claim; the two claims were therefore

20 related. SPB’s objection is OVERRULED.

21

SPB also objects to the fact that the report did not recommend the same apportionment

22 for expenses and costs as it did for attorney’s fees. As to attorney’s fees, the report

23 recommended an apportionment of 80 percent liability for CDCR and 20 percent liability for

24 SPB. This order concludes that the same apportionment of expenses and costs is appropriate.

25

26

27

1As part of its analysis as to the relatedness of plaintiff's successful and unsuccessful claims, CDCR

asserted, in passing, that the same equitable relief would have been available to plaintiff through his petition for
28 writ of mandate (Dkt. No. 310, p. 5). But CDCR did not raise this as a separate and distinct basis for a fee

reduction. Defendants therefore did not properly raise this argument in proceedings before the special master.

3

Case 3:13-cv-05671-WHA Document 360 Filed 06/16/16 Page 4 of 5

United States District Court For the Northern District of California

1 This order holds that CDCR shall be 80 percent liable for expenses and costs and SPB shall be

2 20 percent liable.

3 2.

PLAINTIFF’S OBJECTIONS.

4

Plaintiff did not lodge formal objections as to the recommendation regarding attorney’s

5 fees. Rather, plaintiff stated that the report of the special master reflects an “eminently fair” and

6 reasonable overall resolution of the fees owed plaintiff. As discussed below, however, plaintiff

7 objects to the 50-50 apportionment of special master fees.

8 3.

SPECIAL MASTER’S FEES AND EXPENSES.

9

The special master billed 190 hours total and requested compensation for 110 hours,

10 equaling $22,000 at $200 per hour. Neither side objected to the entries on her invoice. This

11 order finds that the special master’s fees and expenses are reasonable. Pursuant to Rule 53(g),

12 the special master’s compensation is hereby FIXED.

13

The special master proposed the following allocation for special master expenses: (1)

14 50 percent for plaintiff, (2) 25 percent for CDCR and (3) 25 percent for SPB (Dkt. No. 353).

15

Plaintiff objects to the recommended apportionment of special master fees. The

16 recommendation is reasonable, however. The special master did not agree with plaintiff on

17 every issue; plaintiff’s positions played at least a partial role in the need for a special master’s

18 intervention. Plaintiff’s objection is therefore OVERRULED.

19

Plaintiff alternatively asks that the cost award be amended to include plaintiff’s portion

20 of the special master’s fees. A prior order specifically addressed this issue by stating that, if

21 fees of the special master are allocated to plaintiff, the fees “shall be deducted from the

22 attorney’s fee award” (Dkt. No. 313 at 14). Plaintiff’s request to allocate his portion of the

23 special master fees as costs is therefore DENIED.

24 4.

PLAINTIFF’S FURTHER REQUEST FOR FEES.

25

Plaintiff makes a request for fees-on-fees-on-fees for the work of preparing a response to

26 defendants’ objections to the report of the special master (Dkt. No. 357). This order concludes

27 that plaintiff played at least a partial role in the need for a special master and thus the post-

28

4

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United States District Court For the Northern District of California

1 report briefing. This order declines to launch a further satellite to orbit this satellite litigation.

2 Plaintiff’s request for fees-on-fees-on-fees is DENIED.

3 5.

STAY OF PAYMENT OF AWARD PENDING APPEAL.

4

The report recommends staying any award of attorney’s fees, costs, and expenses until

5 after all appeals have been exhausted. Plaintiff does not object to this recommendation but asks

6 the Court to clarify that only the payment of the award is stayed pending appeal but that the

7 time within which defendants must appeal from the Court’s order and/or amended judgment

8 awarding fees and expenses begins to run from the date of its issuance. This issue is addressed

9 below.

10

CONCLUSION

11

For the reasons stated herein, all objections are hereby OVERRULED. The special

12 master’s report and recommendation is hereby ADOPTED WITH ONE MODIFICATION. As to

13 expenses and costs, this order holds that CDCR shall be 80 percent liable and SPB shall be 20

14 percent liable.

15

Accordingly, plaintiff is hereby awarded $1,186,307.70 in attorney’s fees, $20,569.01 in

16 statutory costs, $145,972.86 non-statutory litigation expenses, and $50,717.12 of fees-on-fees.

17 The special master’s compensation of $22,000 is hereby FIXED.

18

Payment of this award is STAYED until all appeals are exhausted. This stay is limited to

19 payment and does not affect any rights to appeal this order.

20

The parties shall promptly send payment to the special master as follows: (1) plaintiff

21 shall send a check for 50 percent of the compensation ($11,000); (2) CDCR shall send a check

22 for 25 percent of the compensation ($5,500); and (3) SPB shall send a check for 25 percent of

23 the compensation ($5,500).

24

The Court extends its highest compliments and thanks to Attorney Christina Chen for

25 her excellent service and for taking a reduced fee to be of service to the district court.

26

IT IS SO ORDERED.

27 Dated: June 16, 2016. 28

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

5

Case 3:13-cv-05671-WHA Document 360-1 Filed 06/16/16 Page 1 of 73

1 Christina Chen

2

State Bar No. 220498 2705 Webster Street Unit 5141

3 Berkeley, CA 94705 Telephone: (415) 999-3858

4 Email: cpc15@cornell.edu

5

6

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

7

:

8 VICTOR GUERRERO,

: Case No. 3:13-cv-05671-WHA

:

9

Plaintiff,

:

: SPECIAL MASTER REPORT

10

vs.

: AND RECOMMENDATION

: RE PLAINTIFF’S MOTION

11 CALIFORNIA DEPARTMENT OF

: FOR ATTORNEY’S FEES AND

CORRECTIONS AND REHABILITATION;

: EXPENSES

12 STATE PERSONNEL BOARD; et al.,

:

:

13

Defendants.

: [Hon. William Alsup]

:

14

:

:

15

16

17

18

INTRODUCTION

19

The undersigned special master submits this report and recommendation on the

20 amount of reasonable attorney’s fees and expenses the Court should award to Plaintiff

21 Victor Guerrero. Plaintiff seeks: (1) $1,621,776.15 in attorney’s fees (including fees on

22 fees), (2) $22,469.61 in statutory costs and (3) $145,972.86 in non-statutory litigation

23 expenses. Defendant California Department of Corrections and Rehabilitation (“CDCR”)

24 contends the fee award should be reduced to $279,265. Defendant California State

25 Personnel Board (“SPB”) joins CDCR’s position, adds some objections, but does not

26 propose any alternative fee amount. This report finds and recommends: (1) reasonable

REPORT AND RECOMMENDATION

1

Case No. 13-cv-05671 WHA

Case 3:13-cv-05671-WHA Document 360-1 Filed 06/16/16 Page 2 of 73

1 attorney’s fees of $1,186,307.70 (for the merits litigation), (2) statutory costs of $20,569.01,

2 (3) non-statutory litigation expenses of $145,972.86 and (4) fees on fees of $50,717.12.

3 This report also recommends apportioning the total fee award of $1,237,024.82 so that

4 CDCR is liable for eighty percent (80%) and SPB is liable for twenty percent (20%).

5 This results in $989,619.86 for CDCR and $247,404.96 for SPB.

6

TABLE OF CONTENTS

7 Scope of Referral

8

Background Legal Standard

9 Discussion

I

Entitlement to Fees and Expenses

10

II Reasonable Rates

A. Plaintiff’s Evidence and Defendants’ Contentions

11

B. Reasonable Rates for Attorneys

12

1. Alexis Alvarez 2. Marsha Chien

13

3. Christopher Ho

4. William McNeill

14

5. Richard Pearl

6. Diane Webb

15

C. Reasonable Rates for Paralegals

16

III Scope of Litigation and Reasonable Hours

A. Exercise of Billing Judgment

17

B. Percentage Recoverable and Relatedness of Claims

C. Project-By-Project with Line Item Analysis for Project Fees

18

D. Lodestar of Recoverable Fees

IV Downward Adjustment of Lodestar

19

A. Relatedness of Successful and Unsuccessful Claims

20

B. Overall Results Achieved

V Bill of Costs and Litigation Expenses

21

A. Bill of Costs

B. Litigation Expenses

22

VI Fees on Fees

23

VII Apportionment and Stay A. Apportionment of Any Award

24

B.

Conclusion

Stay of Any Award

25

SCOPE OF REFERRAL

26

This matter came before the special master by the Court’s Order Appointing

REPORT AND RECOMMENDATION

2

Case No. 13-cv-05671 WHA

Case 3:13-cv-05671-WHA Document 360-1 Filed 06/16/16 Page 3 of 73

1 Attorney Christina Chen as Special Master and Setting Schedule for Report and

2 Recommendation, dated February 22, 2016. (Dkt. 328.) Among other things, the order

3 authorized the special master to make proposed findings and determine the amount of

4 attorney’s fees and expenses to be awarded Plaintiff based on his victory for Title VII

5 violations due to disparate impact. The order provided the special master with all powers set

6 forth in Rules 53(c) and 54(d)(2)(D). This report is made in compliance with that order.

7

BACKGROUND

8 Summary on Nature of Case

9

As summarized in the Order re Relief (Dkt. 277), Plaintiff Victor Guerrero became a

10 United States citizen in 2011 and applied to become a prison guard with CDCR. Before Mr.

11 Guerrero became a legal permanent resident, however, he had used an invented social

12 security number for employment purposes. After passing CDCR’s written and physical

13 examinations, CDCR placed him on its eligibility list. The next step included completing

14 CDCR’s background investigation questionnaire. Question 75 asked: “Have you ever had or

15 used a social security number other than the one you used on this questionnaire?” Mr.

16 Guerrero answered “Yes” and wrote in an explanation. CDCR treated Mr. Guerrero’s prior

17 invalid SSN use as a showstopper and withheld him from the eligibility list for this sole

18 reason. Mr. Guerrero appealed CDCR’s withhold decision to SPB, which affirmed. A year

19 later, Mr. Guerrero again applied to CDCR and was withheld for the same reason. Mr.

20 Guerrero then appealed CDCR’s second withhold to SPB, which remained pending during

21 most of this action. In Mr. Guerrero’s case, Defendants violated Title VII by failing to

22 properly consider the recency, relevancy, and severity of Mr. Guerrero’s prior invalid SSN

23 use, factors required by the Equal Employment Opportunity Commission’s guidelines.

24 Instead, CDCR and SPB conclusively dismissed Mr. Guerrero’s employment application

25 without considering those factors. Consequently, after a six-day bench trial, the Court found

26 that Defendants violated Title VII. (Dkt. 263, Findings of Fact and Conclusions of Law 22

REPORT AND RECOMMENDATION

3

Case No. 13-cv-05671 WHA

Case 3:13-cv-05671-WHA Document 360-1 Filed 06/16/16 Page 4 of 73

1 “FFCL”.) Plaintiff, however, lost on his federal constitutional claims. His state-law claims,

2 dismissed from this action, are pending in state court. The procedural history of this action

3 is summarized in the FFCL.

4 Plaintiff’s Counsel Legal Aid Society-Employment Law Center

5

Throughout this litigation, Plaintiff was and is represented by Legal Aid Society-

6 Employment Law Center (“LAS”) in San Francisco, CA. Founded in 1916, LAS is a

7 private, non-profit public interest law firm with the mission to protect and expand the

8 workplace rights of historically disadvantaged communities. Over the years, LAS has

9 represented persons of color, women, recent immigrants, individuals with disabilities, sexual

10 minorities, and the working poor in challenges to discriminatory or otherwise unlawful

11 employment practices that have resulted in serious injustices to those communities. (Dkt.

12 296-2, Declaration of Christopher Ho ¶4 “Ho Decl.”) On this fee application, Plaintiff is co-

13 represented by the Law Offices of Richard M. Pearl in Berkeley, CA. Because LAS

14 provides legal services to its clients—such as Mr. Guerrero—free of charge, it relies upon

15 court awards of statutory fees and costs when its cases are successful. (Dkt. 299,

16 Declaration of Jack Lee ¶15 “Lee Decl”; Dkt. 316-2, Supplemental Declaration of

17 Christopher Ho ¶ 17 “Ho Suppl. Decl.”) Any fees and expenses awarded to LAS in this

18 action will not inure to the personal benefit of any individual associated with it. Instead, any

19 awarded funds will be used to support further public interest litigation by LAS on behalf of

20 underrepresented workers such as Mr. Guerrero. (Ho Decl. ¶ 73.)

21 Summary of Fee Motion Proceedings

22

Plaintiff filed his motion for attorney’s fees and expenses on October 30, 2015.

23 (Dkt. 296.) Concurrently, Plaintiff filed his Bill of Costs. (Dkt. 295.) CDCR filed its first

24 opposition to the motion on November 20, 2015. (Dkt. 310.) While joining in CDCR’s

25 opposition, SPB also filed its own opposition. (Dkt. 312.) On November 23, 2015, the

26 Court issued its Order re Attorney’s Fees and Costs. That order set forth very detailed

REPORT AND RECOMMENDATION

4

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1 procedures on how the fee motion would progress toward resolution. Among other things,

2 that order: (1) required Plaintiff’s supplemental submission of re-organized billing records,

3 (2) provided for Defendants’ inspection of underlying time records, (3) established how

4 Defendants may oppose Plaintiff’s supplemental submission in a meaningful way, (4)

5 required the parties to hold an in-person settlement conference after the second round of

6 submissions to try to resolve all differences on award amount, (5) announced the Court’s

7 intention to appoint a special master and (6) alerted the parties that, absent any

8 supplementation allowed by the special master, the second round of submissions (together

9 with the briefs already filed) shall be the entire record on the fee motion. (Dkt. 313, Order

10 re Attorney’s Fees and Costs ¶¶ 3-4, 8-11, 13 “November 23 Order.”)

11

Plaintiff filed its supplemental submission with re-organized billing records on

12 December 11, 2015. (Dkt. 315, 315-1.) CDCR filed its second opposition on December 28,

13 2015. (Dkt. 318.) While joining in CDCR’s second opposition, SPB also filed its own

14 second opposition. (Dkt. 320.) On January 7, 2016, counsel for the parties and a CDCR

15 representative met in person to try to resolve all differences on the amount of the award. No

16 resolution was reached. (Dkt. 321.) The Court appointed the undersigned after the parties

17 were unable to suggest any agreed-to candidates. Before the undersigned was appointed,

18 the parties and the undersigned convened a teleconference to discuss any potential conflicts

19 and raise any questions. No objections were made to the undersigned’s appointment. (Dkt.

20 328.) The Court appointed the undersigned on February 22, 2016. (Dkt. 328.)

21 Proceedings Before the Special Master

22

Pursuant to the appointment order, on February 26, 2016, the parties jointly

23 submitted to the special master all briefing and relevant documents filed in this action

24 regarding Plaintiff’s fee application. Plaintiff’s counsel also submitted electronic copies of

25 certain tables and its project-by-project billing records with line item time/task entries (all

26 filed with the fee application). On March 10, 2016, the special master issued an order to the

REPORT AND RECOMMENDATION

5

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1 parties, requesting copies of all authorities cited in the motion papers for attorney’s fees and

2 expenses. (Dkt. 330.) On March 30, 2016, the special master issued a second order to

3 Plaintiff. It requested: (1) one master chart summarizing all time claimed and not claimed

4 for each of LAS’s eight timekeepers; (2) mini-summary charts of total time and fees sought

5 per individual timekeeper broken down on a project-by-project basis corresponding to the

6 listing of projects in the fee motion; and (3) copies of court orders and opinions for court

7 awarded attorney’s fees and expenses from 2011 to 2016 in individual employment and civil

8 rights actions litigated by San Francisco Bay Area attorneys, including any court awarded

9 attorney’s fees and expenses LAS has won from 2011 to 2016. (Dkt. 346.)

10

Given the parties’ voluminous submission on this fee motion, and each party’s

11 opportunity to provide two rounds of written arguments and supporting evidence, this report

12 finds Plaintiff’s motion is appropriate for determination without oral arguments.

13

LEGAL STANDARD

14

“The most useful starting point for determining the amount of a reasonable fee is the

15 number of hours reasonably expended on the litigation multiplied by a reasonable hourly

16 rate. This calculation provides an objective basis on which to make an initial estimate of the

17 value of a lawyer’s services. The party seeking an award of fees should submit evidence

18 supporting the hours worked and rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 19 (1983).1 There is “a strong presumption that the lodestar represents the reasonable fee.”

20 Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). “The product of reasonable

21 hours times a reasonable rate does not end the inquiry. There remain other considerations

22 that may lead the district court to adjust the fee upward or downward, including the

23

24 1 In Hensley, the disputed fee award was under 42 U.S.C. § 1988. 461 U.S. at 433.

25

Nonetheless, Hensley applies here. The Hensley Supreme Court noted that Section 1988 was patterned upon the attorney’s fees provision in Title VII, and thus “[t]he standards set

26 forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party.’” Id. at 433 n.7.

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1 important factor of the ‘results obtained.’ This factor is particularly crucial where a plaintiff

2 is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.”

3 Hensley, 461 U.S. at 434.

4

DISCUSSION

5 I

ENTITLEMENT TO FEES AND EXPENSES

6

Plaintiff won his Title VII claim at trial and judgment was entered in his favor on

7 that claim. (Dkt. No. 278.) As conceded in CDCR’s and SPB’s first oppositions to

8 Plaintiff’s motion for fees and expenses, Plaintiff is entitled to recover a reasonable amount

9 of attorney’s fees and expenses under Title VII, 42 U.S.C. § 2000e-5(k), based on his

10 victory. (Dkt. 313.) That statutory section provides: “In any action or proceeding under this

11 subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable

12 attorney’s fee (including expert fees) as part of the costs . . . .”

13 II REASONABLE RATES

14

Plaintiff seeks fees for nine timekeepers: six attorneys with requested hourly rates

15 ranging from $775 to $385 and three paraprofessionals with a requested hourly rate of $165.

16

Reasonable rates are calculated according to the prevailing market rates in the

17 relevant community, with close attention paid to the fees charged by “lawyers of reasonably

18 comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11

19 (1984); Davis v. City and Co. of San Francisco, 976 F.2d 1536, 1545-1546 (9th Cir. 1992).

20 The “relevant community” is the District in which the lawsuit proceeds. Gates v.

21 Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). The fair market value of the work

22 performed sets the measure, as determined by the prevailing rates charged by commercial

23 law firms for reasonably similar federal litigation. Davis, 976 F.2d at 1547, affirming U.S.

24 v. City & Co. of San Francisco, 748 F.Supp. 1416, 1431 (N.D. Cal. 1990) (plaintiff’s non-

25 profit attorneys entitled to rates charged by “corporate attorneys of equal caliber”); see also

26 Blum, 465 U.S. at 895 (stating reasonable rate is prevailing market rates, “regardless of

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1 whether plaintiff is represented by private or nonprofit counsel”).

2

The fee applicant has the burden of producing satisfactory evidence, in addition to

3 the affidavits of its attorneys, that the requested rates are in line with those prevailing in the

4 community for similar services of attorneys of reasonably comparable skill, experience, and

5 reputation. Hensley, 461 U.S. at 433. Affidavits of the fee applicant’s attorney and other

6 attorneys regarding prevailing fees in the community, and rate determinations in other cases,

7 particularly those setting a rate for the attorneys, are satisfactory evidence of the prevailing

8 market rate. United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.

9 1990). When considering the rates of other attorneys of comparable skill, experience, and

10 reputation, courts should look to fees awarded in other types of similar litigation. Bernardi

11 v. Yeutter, 951 F.2d 971, 974 (9th Cir. 1991). Parties are required to justify the

12 reasonableness of the requested rates; if the party fails to meet this standard, the fee request

13 may be reduced or excluded altogether. See, e.g., Blackwell v. Foley, 724 F.Supp.2d 1068

14 (N.D. Cal. 2010).

15

A. Plaintiff’s Evidence and Defendants’ Contentions

16

To support Plaintiff’s requested hourly rates from $775 to $385 for attorneys and

17 $165 each for one paralegal and two legal assistants, his counsel submits a plethora of

18 evidence: (1) declarations of four attorneys with ties to LAS who also practice in the

19 Northern District of California; (2) resumes of all six attorney timekeepers; (3) compilations

20 of surveys by commercial law firms with offices in this District showing hourly billing rates

21 for private attorneys of various seniority; (4) summaries of court-awarded attorney’s fees in

22 complex civil actions; and (5) actual copies of court awards of attorney’s fees in class

23 settlements.

24

Attorneys submitting declarations are Christopher Ho of LAS (Plaintiff’s lead

25 counsel), Richard Pearl (Plaintiff’s co-counsel on this fee application), James Finberg of

26 Altshuler Berzon LLP and Jack Lee of Minami Tamaki LLP (both practice in this District

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1 and are on the Board of Directors for LAS). Among other things, Mr. Ho’s two declarations

2 set forth his training, qualifications and experience as well as the same for the four other

3 LAS attorneys. All are detailed in Section II.B. below. Mr. Ho’s declaration also describes

4 how LAS sets its hourly rates:

5

The hourly attorney and legal worker rates described and sought below are

derived from a survey conducted annually by the LAS staff and Board of

6

Directors, which takes into account the billing rates charged by for-profit

San Francisco law firms for attorneys of comparable experience doing

7

comparable work, as well as rates utilized by comparable non-profit public

interest organizations for the same purpose. Many of LAS’s Board

8

members are private attorneys in the San Francisco area, and together they

have a full knowledge of prevailing market rates. Our rates are also based

9

upon other information received from private attorneys relating to the rates

charged by San Francisco law firms for comparable litigation. (Ho Decl. ¶

10

55.)

11

Richard Pearl has practiced law in California since 1971, specializing on cases and

12 appeals involving court-awarded attorney’s fees for about thirty-three years. (Dkt. 297,

13 Declaration of Richard M. Pearl ¶¶ 3-4 “Pearl Decl.”) Mr. Pearl has been retained by LAS

14 as co-counsel on this fee application, taking the lead in this regard. (Pearl Decl. ¶ 1.) His

15 background and experience are detailed below in Section II.B.5. Suffice it to say, Mr. Pearl

16 has extensive experience on issues involving court-awarded attorney’s fees from many

17 angles—as an advocate, expert witness, mediator, arbitrator, author and lecturer. (Pearl

18 Decl. ¶¶ 2, 4-5, 7.) His expert testimony on the reasonableness of attorney’s rates and fees

19 has been favorably cited in numerous federal and state courts in various actions. (Pearl

20 Decl. ¶ 7.) Here, Mr. Pearl opines that “the rates charged by Plaintiff’s attorneys for their

21 work in these proceedings are well within, and sometimes significantly below, the range of

22 rates charged by comparably qualified attorneys for reasonably similar work.” (Pearl Decl.

23 ¶ 15.) Under penalty of perjury, Mr. Pearl proffers the data underlying his opinion. They

24 are summaries of local rates from seventeen recent court awards of attorney’s fees, rate

25 information from credible surveys of legal rates and a compilation of standard hourly non-

26 contingent rates for law firms with California offices as stated in court filings, depositions,

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1 surveys and other reliable sources. (Pearl Decl. ¶¶ 12-14; Dkt. 297-1, Exh. C-E pgs. 112 462.)

3

James Finberg has practiced law for approximately thirty years, within California

4 since 1992. (Dkt. 298, Declaration of James M. Finberg ¶¶ 6-7 “Finberg Decl.”) He is a

5 partner at Altshuler Berzon LLP specializing in labor, employment and civil rights law, and

6 was formerly a partner at Lieff Cabraser Heimann & Berstein LLP. (Finberg Decl. ¶¶ 1, 4,

7 6.) He has served as lead or co-lead counsel in numerous class actions involving race,

8 gender, national origin and age discrimination as well as violations of wage/hour laws.

9 (Finberg Decl. ¶¶ 7-8.) Since 2005, Mr. Finberg has been listed by Best Lawyers in

10 America as one of the best lawyers for labor and employment law. In 2009, Mr. Finberg

11 was named a California Lawyer of the Year by the California Lawyer magazine for civil

12 rights law. (Finberg ¶ 10.) Mr. Finberg’s current hourly rate is $895. Given his personal

13 knowledge of hourly rates charged by other attorneys, Mr. Finberg believes his rate is fully

14 consistent with the market rate for attorneys with comparable expertise, experience and

15 qualifications. (Finberg Decl. ¶¶ 15-16.) Furthermore, Mr. Finberg “believe[s] the rates

16 requested by the Legal Aid Society-Employment Law Center are reasonable given the skill,

17 expertise, and experience of the lawyers working on the case, and are well within the range

18 of rates awarded to attorneys in Bay Area with that experience and background for similar

19 work.” (Finberg Decl. ¶ 22.)

20

Jack Lee has practiced law in California for over thirty-nine years. (Dkt. 299,

21 Declaration of Jack W. Lee ¶ 6 “Lee Decl.”) He is a partner with Minami Tamaki LLP, and

22 was formerly associated with a law firm which prosecuted complex employment actions

23 throughout the nation. Mr. Lee was also a Regional Attorney for the Office of Civil Rights,

24 U.S. Department of Education, responsible for enforcing anti-discrimination laws in

25 26 2 All references to page numbers in court filings use the page numbers assigned by the ECF
system, regardless of the page numbers used in the original document.

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1 federally funded schools. (Lee Decl. ¶¶ 1, 6.) Serving as lead counsel or counsel, Mr. Lee

2 has substantial experience litigating individual and class action employment cases in federal

3 and state courts. (Lee Decl. ¶¶ 6, 8, 10.) Because Mr. Lee’s practice is primarily sustained

4 by statutory fees-shifting cases, a significant part of his work is also dedicated to the law

5 governing attorneys’ fees recovery on behalf of prevailing plaintiffs. In addition to his own

6 fees petitions, Mr. Lee has submitted declarations as an expert on the reasonableness of

7 attorneys’ fees and hourly rates in other Title VII cases. (Lee Decl. ¶ 11.) Mr. Lee’s current

8 hourly rate is $795, which he believes is reasonable given his experience and background.

9 (Lee Decl. ¶ 17.) Based on his knowledge of hourly rates charged by other local

10 employment attorneys, and of recent fee awards to local attorneys in employment and civil

11 rights cases, Mr. Lee opines that the hourly rates requested here by LAS are (1) reasonable

12 for attorneys with comparable expertise, experience and qualifications and (2) at or below

13 market for similar kinds of work. (Lee Decl. ¶¶ 16, 20, 22.) Furthermore, for each of the

14 six attorneys here, Mr. Lee goes on to specifically opine that each of the six requested

15 hourly rates is reasonable and either at or below market, after reviewing each of the six

16 attorney’s qualifications and experience. (Lee Decl. ¶¶ 25-29, 31.)

17

In response, Defendants oppose Plaintiff’s requested hourly rates from $775 to $385

18 for attorneys and $165 for legal professionals as excessive and unreasonable. (Dkt. 310,

19 CDCR Defendants’ Opposition 6-7 “CDCR Opp.”; Dkt. 312, State Personnel Board’s

20 Opposition 4 n.1 “SPB Opp.”) With SPB joining CDCR’s contentions, Defendants urge the

21 Court to grant flat hourly rates of no more than $200 for all six attorneys and $150 for all

22 three paralegals, resulting in an initial lodestar of $630,715. (CDCR Opp. 7.) As support,

23 Defendants advance an Administrative Bulletin setting the billing rates for CDCR’s counsel

24 here—the California Department of Justice (“DOJ”). The Bulletin states the DOJ’s billing

25 rates to its clients through June 2017 is $170 per hour for Attorney Services and $120 per

26 hour for Paralegal Services, regardless of experience level of the DOJ attorney or paralegal.

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1 (Dkt. 311, Declaration of Christopher M. Young ¶ 2 “Young Decl.”; Dkt. 311-1, Exh. A pg.

2 2; Dkt. 319, Declaration of Christopher M. Young ¶ 12 “Young Suppl. Decl.”)

3

Defendants’ call for a flat $200 hourly rate for all six of Plaintiff’s attorneys is

4 unreasonable. While this report acknowledges that the Court’s Order re Fees and Expenses

5 mandated disclosure of billing rates charged to Defendants, neither CDCR nor SPB proffer

6 any evidence that the DOJ’s much lower $200 rate for attorneys is in keeping with the

7 prevailing market rate within the Northern District of California for the areas of law litigated

8 in this action. The DOJ billing rate appears to be the at-cost, in-house rate that the DOJ

9 charges its clients within the State of California’s executive branch, regardless of the DOJ

10 attorney’s experience, area of expertise, skill or office location. And while Defendants

11 argue that the requested rate for Mr. Ho is over four times the rate for CDCR’s counsel, they

12 offer no evidence to substantiate that CDCR’s counsel and Mr. Ho have similar skill levels.

13

Attempting to sidestep this evidentiary gap, Defendants cite Northwest Energetic

14 Services, LLC v. California Franchise Tax Bd., 159 Cal.App.4th 841, 881 (Cal. App. 1st

15 Dist. 2008), for the proposition that the “exorbitant hourly rates requested by plaintiff’s

16 counsel” should not be granted against a state governmental agency with limited resources.

17 (CDCR Opp. 6.) Reliance on Northwest is misplaced. Northwest did not address, much less

18 decide, any issue on what constitutes a reasonable hourly rate for the lodestar calculation.

19 Rather, Northwest concerned a state trial court’s potentially inappropriate adjustment of the

20 lodestar amount upward, despite the mitigating factor of whether the attorney’s fees award

21 “would be against the state and ultimately fall upon the taxpayers.” Id. at 879, 881.

22 Moreover, Northwest underscores that a state trial court in determining an attorney’s fees

23 award must not do what Defendants have done here—which is “intertwine considerations

24 relevant to the determination of the lodestar amount with factors relevant to whether the

25 lodestar should be adjusted upward.” Id. at 879. It bears mentioning that Defendants

26 neither advance Northwest nor their status as state government agencies when asking the

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1 Court to reduce Plaintiff’s lodestar amount.

2

Switching gears, Defendants’ final argument is that, even if Plaintiff’s attorneys are

3 entitled to hourly rates over $200, the requested rates ranging from $775 to $385 are

4 unreasonably too high. (CDCR Opp. 7.) Their two rationales are (1) Mr. Finberg’s

5 declaration basing his law firm’s commercial hourly rates on court awards of attorney’s fees

6 in class settlements and (2) the hourly rates that Judge Claudia Wilken awarded to ERISA

7 attorneys in Zoom Elec., Inc. v. IBEW, Local 595, 2013 U.S. Dist. LEXIS 73983 (N.D. Cal.

8 May 24, 2013).

9

Neither is persuasive. First, Plaintiff’s attorneys are not limited to only the rates

10 charged or awarded in employment and civil rights cases. Instead, they are entitled to the

11 rates charged by attorneys handling similarly complex federal cases in other fields as well,

12 including, when appropriate, class actions. Prison Legal News v Schwarzenegger, 608 F.3d

13 446, 455 (9th Cir. 2010) (“Although the state officials urge us to look only to the rates

14 charged by other attorneys involved in prison litigation, the proper scope of comparison is

15 not so limited, but rather extends to all attorneys in the relevant community engaged in

16 ‘equally complex Federal litigation,’ no matter the subject matter.”); Camacho v Bridgeport

17 Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (consumer attorneys not limited to rates

18 charged by or awarded to other consumer attorneys).

19

Second, Zoom is unhelpful to Defendants. There, Judge Wilken granted a motion for

20 attorney’s fees under California state law, allowing reasonable hourly rates of $675 for

21 partners, $300 to $400 for associates, and $180 to $225 for law clerks and paralegals at the

22 fee applicants’ law firm of Leonard Carder LLP. 2013 U.S. Dist. LEXIS 73983 at *4, 10-

23 11, 13. Zoom, however, did not reveal the qualifications or experience levels of the two

24 attorneys of record (Christina S. Hwang and Sara B. Tosdal) representing the fee applicants,

25 nor any of the other timekeepers who billed the fee applicants. Instead, Zoom very briefly

26 mentioned the experience level of the attorney submitting the fee declaration, but it is

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1 unclear whether he represents the fee applicants. Thus, the rates found reasonable in Zoom

2 cannot be reliably benchmarked to the qualifications, skills and experience of Plaintiff’s

3 attorneys or their corresponding requested hourly rates.

4

Given the above and each attorney’s training, qualifications and experience as

5 detailed in Section II.B below, this report finds that Plaintiff’s requested hourly rates for his

6 six attorneys are reasonable, with the caveat of three adjustments explained in Section II.B.

7 To summarize:

8

Attorney

Reasonable Hourly Rate

9 Alexis Alvarez

$325

10 Marsha Chien

$358

11 Christopher Ho

$753.50

12 William McNeill

$754

13 Richard Pearl

$775

14 Diane Webb

$654.50

15 Defendants do not dispute any of the six attorney’s hourly rates as too high based on any

16 absent or subpar qualifications, skills, expertise or experience. Nor do Defendants argue

17 that Plaintiff’s counsel was ill prepared, disorganized, discourteous, provided shoddy work

18 product or performed poorly during the pre-trial, trial or post-trial briefing, proceedings and

19 court appearances. Defendants do not attack Plaintiff’s ample evidentiary submission on

20 requested hourly rates as inadequate, inaccurate or not credible. Defendants also do not

21 dispute that in gauging the prevailing market rates for non-profit, public interest attorneys

22 the appropriate benchmark is private practice attorneys at for-profit commercial law firms

23 within the same District.

24

B. Reasonable Rates for Attorneys

25

1. Alexis Alvarez

26

For Ms. Alvarez, Plaintiff seeks an hourly rate of $385. Ms. Alvarez, a 2011

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1 graduate of the King Hall School of Law at the University of California Davis, is a staff

2 attorney at LAS- ELC. Prior to LAS, Ms. Alvarez was a staff attorney at the Disability

3 Rights Legal Center and a judicial law clerk for the Los Angeles County Superior Court as

4 well as the Colorado Court of Appeals. (Ho Decl. ¶ 60.) She received undergraduate

5 degrees from Colorado State University. (Dkt. 303, Exh. F pg. 2.) In this action, Ms.

6 Alvarez assisted in preparing Plaintiff’s motions in limine. (Ho Suppl. Decl. ¶ 30.)

7

This report finds and recommends that the reasonable hourly rate for Ms. Alvarez is

8 $325. This lower rate is keyed to Ms. Chien’s reasonable rate of $358 (explained below)

9 and takes into account that Ms. Alvarez has less experience than Ms. Chien. The $60

10 reduction in Ms. Alvarez’s rate also maintains the same $33 difference between Plaintiff’s

11 requested rates of $418 for Ms. Chien and $385 for Ms. Alvarez.

12

2. Marsha Chien

13

For Ms. Chien, Plaintiff seeks an hourly rate of $418. After graduating from the

14 University of Pennsylvania Law School in 2010, where she served on law review, Ms. Chien

15 served for two years as a judicial law clerk for U.S. District Judge Marsha J. Pechman of the

16 Western District of Washington. (Ho Decl. ¶ 58.) While a law student, Ms. Chien assisted

17 with the representation of immigrants and non-citizens in civil rights cases. (Ho Decl. ¶ 58.)

18 She received her undergraduate degree from Georgetown University. (Dkt. 302, Exh. E pg.

19 3.) After joining LAS as a Skadden Foundation Fellow in 2012, Ms. Chien became a LAS

20 staff attorney in 2014. At LAS- ELC, Ms. Chien’s practice focused on enforcing the

21 workplace rights of immigrants and persons of color. She is now an Assistant Attorney

22 General in the Civil Rights Unit of the Office of the Attorney General, State of Washington.

23 (Ho Decl. ¶¶ 58-59.)

24

In this action, Ms. Chien carried a substantial share of responsibility for moving this

25 case forward. She argued almost every motion heard by the Court, acted as co-lead counsel

26 at trial, and was primarily responsible for managing Plaintiff’s communications with

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1 opposing counsel. She played an integral role in the development of Plaintiff’s legal

2 theories, and was also closely involved with many of the major decisions made in this case.

3 (Ho Suppl. Decl. ¶ 28.)

4

This reports finds and recommends that the reasonable hourly rate for Ms. Chien is

5 $358. This lower rate is reasonable because $358 is in fact the most common implicit

6 hourly rate used for Ms. Chien within LAS’s fee calculations across various exhibits and

7 charts throughout its evidence supporting the fee application, including the key exhibits on

8 billing records documenting time spent and fees incurred. For example, see Dkt. 296-1,

9 Exh. B pg. 4; Dkt. 300, Exh. C pgs. 4, 6-7, 18, 26, 47; Dkt. 315 pg. 14; Dkt. 315-1 pgs. 2,

10 23, 35, 54, 77, 93, 116; Dkt. 315-15 pg. 2; Master Summary Chart and Mini-Summaries

11 Chart in response to the undersigned’s Order re Summaries and Awards (attached hereto as

12 Exhibits 1 and 2). Moreover, it is reasonable to hold LAS to Ms. Chien’s $358 hourly rate

13 because the requested $1,606,857.40 lodestar (excluding Mr. Pearl’s fees) appears to be

14 calculated with this rate. Defendants have relied upon LAS’s fee calculations to oppose this

15 fee application.

16

3. Christopher Ho

17

For Mr. Ho, Plaintiff seeks an hourly rate of $753.50. Mr. Ho is a 1987 graduate of

18 Stanford Law School, and was admitted to practice in California the same year. He holds an

19 undergraduate degree from Yale and another graduate degree from Harvard. (Ho Suppl.

20 Decl. ¶ 19; Dkt. 296-3, Exh. A pg. 2.) After graduating law school, Mr. Ho held two one-

21 year public interest attorney fellowships. He has been employed at LAS as a staff attorney

22 since 1990, and as a senior staff attorney since 1997. (Ho Suppl. Decl. ¶ 19.)

23

In the course of Mr. Ho’s work at LAS, he has developed significant experience

24 litigating cases that seek in particular to protect and strengthen the workplace protections

25 available to members of national origin and racial minority communities. (Ho Suppl. Decl.

26 at ¶ 20.) By listing the many employment discrimination cases from 1991 to recent times

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1 where he served as lead or co-lead counsel, Mr. Ho demonstrates his extensive legal

2 experience and, indeed, specialization in employee-side civil rights litigation during his

3 entire legal career. (Ho Decl. ¶ 6-7.) In 2004, Mr. Ho received a California Lawyer

4 Attorney of the Year Award for his work on two cases brought on behalf of immigrant

5 workers. Martindale-Hubbell has assigned Mr. Ho an “AV” rating. He is currently a

6 member of the Select Task Force on the Study of Harassment in the Workplace of the U.S.

7 Equal Employment Opportunity Commission. (Ho Decl. at ¶ 8.)

8

In this action, Mr. Ho served as lead counsel. In that capacity and in collaboration

9 with others, Mr. Ho developed the legal theories utilized in this action; handled and/or had

10 final authority over all pleadings and other filings; assigned, coordinated, and supervised the

11 work of the various attorneys and legal workers on this action; and had final responsibility

12 for all major strategic decisions. (Ho Suppl. Decl. ¶ 23.)

13

This reports finds and recommends that $753.50 is a reasonable hourly rate for Mr.

14 Ho.

15

4. William McNeill

16

For Mr. McNeill, Plaintiff seeks an hourly rate of $770. Mr. McNeill, a 1971

17 graduate of the University of Michigan Law School, is a senior staff attorney at LAS. (Ho

18 Decl. ¶ 61.) He has an undergraduate degree from Oberlin College. At LAS, Mr. McNeill

19 is also the Director of Race Equity Program. Prior to LAS, Mr. McNeill worked at other

20 non-profit public interest law firms, in private practice and at the EEOC Litigation Center.

21 (Dkt. 304, Exh. G pg. 2-3.) In this action, Mr. McNeill had an advisory role throughout this

22 litigation on numerous matters of law and procedure. (Ho Suppl. Decl. ¶ 32.)

23

This reports finds and recommends that the reasonable hourly rate for Mr. McNeill is

24 $754. Like Ms. Chien’s lower rate, the $754 rate for Mr. McNeill is reasonable because it is

25 in fact the implicit hourly rate used for him within LAS’s fee calculations across exhibits

26 and charts within Plaintiff’s evidence, including the key exhibits on billing records

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1 documenting time spent and fees incurred. For example, see Dkt. 296-1, Exh. B pg. 4; Dkt.

2 300, Exh. C pgs. 221, 224, 232; Dkt. 315 pg. 15; Dkt. 315-1 pgs. 7, 10, 29, 39, 46, 52, 60,

3 76, 85, 90, 101, 108, 116; Dkt. 315-15 pg. 2; Exhibits 1 and 2 attached hereto.

4

5. Richard Pearl

5

For Mr. Pearl, Plaintiff seeks an hourly rate of $775. Mr. Pearl, a 1969 graduate of

6 Boalt Hall School of Law at the University of California Berkeley, is the principal of his

7 own law firm, the Law Offices of Richard M. Pearl in Berkeley. (Pearl Decl. ¶¶ 2-3.) He

8 has an undergraduate degree from the University of California Berkeley. (Dkt. 297-1, Exh.

9 A pg. 2.) Since 1982, Mr. Pearl has specialized in cases and appeals involving court-

10 awarded attorney’s fees. He is the author of California Attorney Fee Awards (3d ed. Cal.

11 CEB 2010) and its annual supplements, as well as its previous editions and annual

12 supplements. California appellate courts have cited Mr. Pearl’s treatise on more than thirty-

13 five occasions. Mr. Pearl has lectured and written extensively on court-awarded attorney’s

14 fees. He has been a member of the California State Bar’s Attorneys’ Fees Task Force and

15 has testified before the State Bar Board of Governors and the California Legislature on

16 attorney’s fee issues. In addition, Mr. Pearl has authored a federal manual on attorney’s fees

17 entitled Attorneys’ Fees: A Legal Services Practice Manual, published by the Legal Services

18 Corporation. (Pearl Decl. ¶ 4.) He has successfully handled five cases in the California

19 Supreme Court involving court-awarded attorney’s fees. (Pearl Decl. ¶ 5.) Mr. Pearl is

20 frequently called upon as an expert to opine on the reasonableness of attorney’s fees, and

21 numerous federal and state courts have favorably cited his testimony on that issue. (Pearl

22 Decl. ¶ 7.) Mr. Pearl’s hourly rate is $775, which is the rate he charges new market-rate

23 paying clients in 2015. He has numerous clients paying that rate for his services. (Pearl

24 Decl. ¶ 9.) In this action, LAS has retained Mr. Pearl as co-counsel on Plaintiff’s fee

25 application, and to take the lead in this regard. (Pearl Decl. ¶ 1.)

26

This report finds and recommends that $775 is a reasonable hourly rate for Mr. Pearl.

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1

6. Diane Webb

2

For Ms. Webb, Plaintiff seeks an hourly rate of $654.50. Ms. Webb, a 1998 graduate

3 of the University of San Francisco Law School, was a former partner at the San Francisco

4 offices of Morgan Lewis & Bockius LLP. (Ho Decl. ¶ 62.) She has an undergraduate

5 degree from San Francisco State University. (Dkt. 305, Exh. H pg. 2.) At LAS, Ms. Webb

6 is Chief Program Officer and General Counsel. In this action, Ms. Webb held an advisory

7 role in the latter stages of this litigation, particularly with respect to trial preparation and trial

8 strategy. (Ho Suppl. Decl. ¶ 34.)

9

This reports finds and recommends that $654.50 is a reasonable hourly rate for Ms.

10 Webb.

11

C. Reasonable Rates for Paralegals

12

Plaintiff seeks a flat hourly rate of $165 for legal assistant Dayan Garcia, legal

13 assistant Kathleen Sheppard and paralegal Rudy Ponce. All are employed at LAS. No

14 information is given on each individual’s qualifications, skills or experience. (Ho Decl. ¶¶

15 63-65; Ho Suppl. Decl. ¶¶ 36, 38.) In this action, Ms. Garcia and Ms. Sheppard provided

16 litigation support throughout this case including, among other things, conducting initial

17 review of and coding Defendants’ document productions by type and issue, preparing

18 Plaintiff’s documents for production; helping identify, prepare, and organize exhibits for

19 oppositions to summary judgment and trial; and preparing subpoenas for trial. (Ho Suppl.

20 Decl. ¶ 36.) Ms. Ponce provided paralegal support throughout this case including, among

21 other things, assuming principal responsibility for overseeing exhibits at trial, including the

22 use of technical equipment, and for tracking the status of exhibits to be offered, ruled upon,

23 and/or admitted; conducting initial review of and coding Defendants’ document productions

24 by type and issue; preparing Plaintiff’s documents for production. (Ho Suppl. Decl. ¶ 38.)

25

The November 23 Order directed LAS’s supplemental declaration to set forth the

26 qualifications and experience of each paralegal for whom fees are sought. (November 23

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1 Order ¶ 6.) Given the lack of showing on their qualifications, skills and experience, this

2 report adopts the rate urged by Defendants for Ms. Garcia, Ms. Sheppard and Ms. Ponce.

3 The report finds that $150 is the reasonable hourly rate in light of Plaintiff’s evidentiary gap.

4 III SCOPE OF LITIGATION AND REASONABLE HOURS

5

In the opening papers, Plaintiff’s lead counsel declared this action was “intensively

6 litigated” from the outset and throughout. (Ho Decl. ¶28.) It is not hard to see why.

7 Plaintiff filed his lawsuit on December 9, 2013. (Dkt. 1.) Within twenty-one months,

8 judgment was entered in Plaintiff’s favor because he proved his Title VII disparate impact

9 claims against two institutional defendants after a six-day bench trial. (Dkt. 263, Dkt. 278.)

10 LAS brought Plaintiff’s disparate impact and constitutional claims to trial in eighteen

11 months. This is no small feat.

12

Hitting the highlights, LAS summarized the scope of this litigation in the opening

13 papers. (Dkt. 296, Motion for Award of Reasonable Attorney’s Fees and Expenses 9-17

14 “Mot.”) There were: (1) four motions to dismiss and two motions for leave to amend at the

15 pleadings stage, with the Third Amended Complaint ordered filed nearly eleven months into

16 the case finally framing the issues for trial (Ho Decl. ¶ 28); (2) highly document-intensive

17 discovery into the background checks of forty-two other CDCR job applicants that was

18 needed to prove up Title VII disparate impact (Ho Decl. ¶ 31), (3) eight sets of

19 interrogatories, document requests and requests for admissions served by Plaintiff on each

20 Defendant (Mot. 12); (4) nine depositions taken by Plaintiff and seven taken by Defendants

21 (Mot. 12); (5) many required areas of expert testimony with six expert witnesses retained by

22 Plaintiff (Ho Decl. ¶ 27a-f); (6) five motions for summary judgment (Mot. 12-14); (7) trial

23 preparations with a six-day bench trial (Mot. 14-15); and (8) post-trial proceedings,

24 including the proposed findings of fact and conclusions of law, briefing and hearing on

25 remedies and this fee application (Mot. 16-17). With two separate opportunities to respond,

26 Defendants do not dispute the “intensively litigated” nature and course of this action.

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1 Instead, in passing, CDCR complains about the “over-litigation of claims against the state

2 government.” (Dkt. 318, CDCR Defendants’ Opposition to Plaintiff’s Supplemental

3 Declaration 6 “CDCR 2nd Opp.”) CDCR, however, does not explain what aspects of LAS’s

4 representation or the court proceedings were excessive, wasteful, duplicative or unnecessary.

5

Now, Plaintiff seeks compensation for 3,347.1 hours claimed by eight LAS

6 timekeepers, split between 2,630.5 attorney hours and 716.6 paralegal hours.

7 Additionally, Plaintiff seeks compensation for 19.25 hours claimed by Mr. Pearl for this fee

8 application. (Ho Suppl. Decl. ¶ 42; Dkt. 315-14, Exh. N pg. 2.) In response to the

9 November 23 Order, requiring Plaintiff’s attorneys to detail “all attorney and paralegal time

10 sought to be recovered”, Mr. Ho’s supplemental declaration states LAS is not currently

11 seeking compensation for hours expended after October 26, 2015. (November 23 Order ¶ 3;

12 Ho Suppl. Decl. ¶ 8.)

13

Before this report gets granular and dissects the reasonableness of hours expended on

14 a project-by-project basis, two preliminary questions warrant attention. First, has LAS

15 shown proof of billing judgment? Second, what percentage of each project undertaken by

16 LAS is recoverable because the hours claimed were on issues for which fees are awardable?

17

A. Exercise of Billing Judgment

18

Court awarded fees should exclude hours that were not reasonably expended. “Cases

19 may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the

20 prevailing party is expected to exercise billing judgment, via making a good-faith effort to

21 exclude hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in

22 private practice ethically is obligated to exclude such hours from his fee submission.”

23 Hensley, 461 U.S. at 434. The November 23 Order states LAS’s supplemental declaration

24 must set forth proof of billing judgment, describing “adjustments made to eliminate

25 duplication, excess, associate-turnover expense, and so forth. These adjustments need not

26 be itemized but totals for the amount deleted per timekeeper should be stated.” (November

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1 23 Order ¶ 6.)

2

In response, LAS filed Mr. Ho’s supplemental declaration with a section entitled

3 “Exercise of Billing Judgment.” It included two charts listing time spent on this action by

4 LAS staff and volunteers for whom compensation is not sought, broken down by

5 timekeeper. (Dkt. 315 ¶ 16; Dkt. 316-2 ¶ 16.) One chart listed eight staff attorneys and

6 three support staff who each clocked time ranging from 22.6 hours to 12 minutes. This chart

7 also included twelve law students and volunteer attorneys who each clocked time ranging

8 from 261.1 hours to 1.4 hours. In total, this first chart listed 1,242.6 “billable” hours from

9 twenty-three timekeepers (most were LAS volunteers) for whom compensation is not

10 sought. While this report appreciates that many people spent many hours helping Mr.

11 Guerrero obtain relief, the proof of billing judgment required by the November 23 Order

12 was focused on the eight LAS timekeepers in Plaintiff’s opening papers “for whom fees are

13 sought.” (November 23 Order ¶ 6.)

14

Mr. Ho’s supplemental declaration on the “Exercise of Billing Judgment” also had a

15 second chart purportedly listing the number of hours not claimed for each of the eight LAS

16 timekeepers for whom fees are sought. (Dkt. 316-2 ¶ 16.) Confusingly, within this second

17 chart, the number of hours not claimed per timekeeper is way off when compared to two

18 other summary charts within Plaintiff’s evidentiary submission appearing to show the same

19 type of information. (Compare Dkt. 316-2 ¶ 16 with Dkt. 296-1 Exh. B pg. 4 with Dkt. 315-

20 15 Exh. O pg. 2.) These and other discrepancies within the cited summary charts call into

21 question not just LAS’s exercise of billing judgment, but also its time/fee accounting system

22 and the various calculations it performed for this fee application. This prompted the

23 undersigned to issue the Order re Summaries and Awards, asking Plaintiff to submit

24 summary charts reflecting the all important Exhibit A at Dkt. 315-1—the LAS billing

25 records broken down on a project-by-project basis. The order requested:

26

REPORT AND RECOMMENDATION

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One master summary chart of total time and fees sought for each of the

1

eight individual timekeepers (not broken down by project) with a grand

total matching plaintiff’s December 11, 2015, request of $1,606,857.40

2

based on 3,347.1 hours in Exhibit A (Dkt. 315-1, filed Dec. 11, 2015).

For each of the eight individual timekeepers, totals for time not sought in

3

plaintiff’s fee request should be stated.

4

Mini-summary charts of total time and fees sought per individual

timekeeper broken down on a project-by-project basis corresponding to

5

the listing of projects in Exhibit A (Dkt. 315-1, filed December 11, 2015).

6 (Dkt. 346.) Plaintiff’s responsive charts are attached hereto at Exhibits 1 and 2,

7 respectively. In the Master Summary Chart of Total Time and Fees Sought for Eight

8 Individual Timekeepers, the numbers on “Hours Not Sought” either exactly or closely match

9 the “Not-Claimed Time” line itemized and subtotaled per timekeeper within billing records

10 initially filed with Mr. Ho’s opening declaration. (Dkt. 300, Exh. C pgs. 243-302.) To

11 illustrate:

12

Name

Hours Not Sought Not-Claimed Time Dkt. 300, Exh. C

13 Alexis Alvarez

4.5

4.5

pg. 244

14 Marsha Chien

190.9

198.8

pg. 253

15 Dayan Garcia

55.3

55.3

pg. 255

16 Christopher Ho

190.0

192.8

pg. 290

17 William McNeill

13.1

13.1

pg. 302

18

Rudy Ponce

10.3

11.1

pg. 299

19

Kathleen Sheppard 17.1

21.2

pg. 297

20

Diane Webb

18.8

18.8

pg. 257

21 The Master Summary Chart states a combined 500 hours from the eight LAS timekeepers

22 were not sought in this fee application. (Exh. 1 attached hereto.) This represents a write

23 down of 12.9% to reach the 3,347.1 hours claimed by LAS for compensation (500 divided

24 by 3,847.1 equals 0.12996).

25 B. Percentage Recoverable and Relatedness of Claims

26

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1

The November 23 Order states “[f]or each project, the declaration must further state,

2 in percentage terms, the proportion of the project directed at issues for which fees are

3 awardable and must justify the percentage. This percentage should then be applied against

4 the project total to isolate the recoverable portion.” (November 23 Order ¶ 4.) Here,

5 Plaintiff submits that all time for which he seeks compensation is awardable. (Ho Suppl.

6 Decl. pg. 6.) Specifically, Plaintiff contends that his successful and unsuccessful claims are

7 all related under the controlling legal test of (1) claims based on a common core of facts and

8 related legal theories and (2) claims that are not distinctly different due to different facts and

9 legal theories. (Mot. 25-26.) The legal test for relatedness is discussed in Section IV.A

10 below.

11

CDCR concedes that Plaintiff’s successful and unsuccessful claims against it are

12 related. All arise from CDCR’s background investigation of Mr. Guerrero. (CDCR Opp. 8-

13 9.) While SPB joins in CDCR’s opposition, SPB separately contends that the Title VII and

14 procedural due process claims against it are wholly unrelated. SPB posits that the “sole

15 factual basis” for the Title VII claim was SPB’s failure to reverse CDCR’s decision, whereas

16 the due process claim “focused on a separate course of conduct: the procedures utilized by

17 SPB in adjudicating his appeal.” (SPB Opp. 9-10 (“Rather, SPB’s conduct found unlawful

18 by the court under Title VII was failing to correct CDCR’s error, not in any deficiency in the

19 process under which SPB conducted its review”).)

20

Not only is SPB splitting hairs, it is incorrect. Plaintiff’s unsuccessful procedural

21 due process claim against SPB is related to his successful Title VII claim. The Court

22 specifically found that SPB’s procedures as applied to Mr. Guerrero were unlawful under

23 Title VII. After the six-day bench trial, the Court made factual findings on (1) SPB’s

24 general procedures for handling appeals from CDCR decisions and (2) how SPB specifically

25 handled Mr. Guerrero’s appeal without scheduling an “evidentiary hearing before an

26 administrative law judge” or taking “any action at all” regarding his written claim that

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1 CDCR unlawfully discriminated against him. (FFCL ¶¶ 28-29, 42-43.) Significantly, the

2 Court’s conclusions of law held:

3

This order further finds that SPB violated Title VII in handling

Guerrero’s appeal. CDCR’s and SPB’s inadequate assessment is further

4

evidenced by their reliance on mistaken assumptions, such as the belief

that ITINs can be used for employment purposes, that use of both an ITIN

5

and a SSN somehow showed unlawful conduct, and the statement that

Guerrero had committed identity theft. Nor have defendants proven that

6

Guerrero’s SSN misuse is “significantly job-related” to the corrections

officer position. Rather than individually assessing Guerrero’s

7

application and properly weighing all relevant factors, defendants

inappropriately used Question 75 as a showstopper.

8

(FFCL 22 (emphasis added).) Two months later, in deciding relief, the Court reiterated that 9

SPB’s inadequate handling and assessment of Plaintiff’s administrative appeal violated Title 10

VII: 11

12

In Guerrero’s case, defendants violated Title VII by failing to properly consider the recency, relevancy, and severity of Guerrero’s prior invalid

13

SSN use, factors required by the Equal Employment Opportunity Commission’s guidelines. Instead, CDCR and SPB conclusively

14

dismissed Guerrero’s application without considering those factors. Consequently, defendants violated Title VII.

15 (Order re Relief 2.) In sum, Plaintiff’s unsuccessful procedural due process claim against
16 SPB is related to his successful Title VII claim.
17 Where, as here, a plaintiff’s claims for relief involved a common core of facts or was
18 based on related legal theories, “[m]uch of counsel’s time will be devoted generally to the
19 litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim
20 basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district
21 court should focus on the significance of the overall relief obtained by the plaintiff in
22 relation to the hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435.
23 Focus on the overall results achieved is addressed below in Section IV.B.
24 This reports finds that, where it would have been difficult, it was reasonable for LAS
25 to not break down each project claim-by-claim into recoverable and non-recoverable
26

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1 percentages and/or hours. Because Plaintiff is entitled to fees on fees, having his counsel

2 undertake the laborious and time-consuming task of breaking down each project claim-by-

3 claim may not be cost effective, and may ignite over-litigation on this fee motion with

4 potential fees on fees eclipsing the fees for any project during the parties’ merits litigation.

5

C. Project-By-Project with Line Item Analysis for Project Fees

6

The party seeking the award of fees bears the burden of submitting billing records

7 detailing the hours spent. Courts may reduce the award where the records do not justify the

8 hours spent. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Courts

9 may reduce the amount of hours billed in the event that the court is unable to determine

10 whether all time in the entries was reasonably expended. Mendez v. County of San

11 Bernardino, 540 F.3d 1109, 1128-1129 (9th Cir. 2008). “The party opposing the fee

12 application has a burden of rebuttal that requires submission of evidence to the district court

13 challenging the accuracy and reasonableness of the hours charged or the facts asserted by

14 the prevailing party in its submitted affidavits.” Gates, 987 F.2d at 1397.

15

Plaintiff’s fee application contains two key exhibits with billing records documenting

16 time expended and fees incurred. Entries are in one-tenths of an hour (six-minute

17 increments). (Dkt. 300, Exh. C; Dkt. 315-1, Exh. A.) Submitted with Plaintiff’s opening

18 papers, the first exhibit is organized by timekeeper with time entries and task descriptions

19 listed chronologically. Defendants opposed the opening papers, but neither addressed the

20 organization or adequacy of the billing records as a whole, nor specifically attacked the line-

21 item time/task entries for billing judgment. Thereafter, the November 23 Order required

22 Plaintiff’s counsel to re-organize and re-submit its billing records on a project-by-project

23 basis:

24

For each project, there must be a detailed description of the work, giving

the date, hours expended, attorney name, and task for each work entry, in

25

chronological order. A “project” means a deposition, a motion, a witness

interview, and so forth. It does not mean generalized statements like “trial

26

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preparation” or “attended trial.” It includes discrete items like “prepare

1

supplemental trial brief on issue X.”

2

All entries for a given project must be presented chronologically one after

the other, i.e., uninterrupted by other projects, so that the timeline for each

3

project can be readily grasped. Entries can be rounded to the nearest

quarter-hour and should be net of write-down for inefficiency or other

4

cause. Please show the sub-totals for hours and fees per project, as in the

example above, and show grand totals for all projects combined at the end.

5

Include only entries for which compensation is sought, i.e., after

application of “billing judgment.”

6

(November 23 Order ¶¶ 3-4.) Given that numerous projects had many chronological entries 7

for various timekeepers with small increments of time, the undersigned asked Plaintiff’s 8

counsel to submit mini-summary charts of total time and fees sought per individual 9

timekeeper broken down on a project-by-project basis corresponding to its list of projects. 10

Plaintiff’s supplemental submission is attached hereto as Exhibit 2 (“Mini-Charts”). 11

The November 23 Order also required Defendants to engage in an evidence-backed 12

counter-analysis of Plaintiff’s billing records: 13

14

If the opposing party contends that any item or project was excessive, then the opposition must explain why and provide a declaration setting forth

15

completely all time expended by the opposing party on the same and on similar projects, in the same format described above, so that symmetry

16

may be considered, making available the underlying records for inspection if requested.

17

The opposing declaration must also state, as to each project, the

percentage of the project the opposition contends was directed at issues on

18

which fees are awardable, stating reasons for the percentage. This

percentage should then be applied against the project total to isolate the

19

recoverable portion.

20

The opposing submissions may not simply attack the numbers in the

application. It must also set forth a counter-analysis. The counter-

21

analysis should be in the same format required of the applicant, arriving at

a final number. The opposition must clearly identify each line item in the

22

application challenged as excessive, improper or otherwise unrecoverable

and explain why.

23

24 (November 23 Order ¶¶ 8-9 (emphasis added).)

25

Before determining what are reasonable hours for each project in light of

26 Defendants’ specific objections, this report addresses two broader arguments raised by

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1 Defendants. First, Defendants contend that fees for state-law claims should not be awarded,

2 because the Court sua sponte dismissed the state-law claims based on the Eleventh

3 Amendment (after negligible litigation by the parties). Thereafter, Plaintiff commenced a

4 state court action based on those claims. (CDCR 2nd Opp. 9-10.) Defendants note that the

5 fees on the state-law claims are more appropriately dealt with in any fee award by the state

6 court, if Plaintiff is ultimately successful there. This report agrees. Where easily

7 identifiable within Plaintiff’s billing records, time spent on the state-law claims will be

8 excised.

9

Second, Defendants argue that certain discovery projects should be reduced by

10 thirty-five percent (35%) to reflect that discovery in this action will also be used in

11 Plaintiff’s parallel cases at two other forums—San Francisco Superior Court and the Office

12 of the Chief Administrative Hearing Officer at the U.S. Department of Justice. (CDCR 2nd

13 Opp. 10.) This report disagrees. Implicit in Defendants’ apportionment request is the

14 recognition that the discovery in these certain projects was relevant to this litigation and

15 contributed to Plaintiff’s Title VII victory here. Moreover, Defendants cite no legal

16 authority for their apportionment contention. (CDCR 2nd Opp. 10; Young Suppl. Decl. ¶¶

17 17-18.) If Plaintiff prevails at the other two forums, this report is confident that Defendants

18 will object if Plaintiff—inadvertently or not—attempts to seek double recovery for the same

19 discovery projects.

20

Moving on to the heart of this matter, below are this report’s findings of reasonable

21 hours and fees for each project. They are based on an analysis of, among other things, the

22 project-by-project line-item time/task entries, the mini-summary charts of total time and fees

23 sought per timekeeper for each project and Defendants’ objections. Given the sheer volume

24 of line items reviewed, this report does not discuss each and every time/task entry

25 Defendants objected to, although the undersigned has carefully reviewed each objection and

26 disputed time/task entry. References to time/task entries are all to Plaintiff’s billing records

REPORT AND RECOMMENDATION

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1 at Dkt. 315-1, Exhibit A. Where applicable, the subtotal fees for each project has been re-

2 calculated in light of the reasonable hourly rates found in Section II above.

3 Project No. 1 – Fact Investigation

4

LAS states this project involved intake interviews with Mr. Guerrero, research of

5 publicly available facts concerning Defendants and investigation into demographics issues.3

6 LAS billed 15.4 hours and requests $8,958.40. Defendants lodged no objections.

7

This report finds the requested $8,958.40 is reasonable.

8 Project No. 2 – Analysis of Potential Claims

9

LAS states this project involved legal research concerning possible Title VII, federal

10 constitutional and other claims. LAS billed 49.8 hours and requests $21,234. Defendants

11 object to numerous line-item entries, arguing almost all of those are unrecoverable as related

12 to Plaintiff’s state-law claims. SPB also objects, arguing all time expended on Plaintiff’s

13 unsuccessful due process claim are unrecoverable. (Dkt. 320, Declaration of Dorothy

14 Bacskai in Support of State Personnel Board Defendants’ Opposition 4 “SPB 2nd Opp.”)

15

This report makes a $10,074.75 reduction and finds $11,159.25 is reasonable. For

16 the reasons stated in this Section III.C, this report excised clearly identifiable time entries

17 tied to the state-law claims. For the reasons stated in Section III.B, this report rejects SPB’s

18 objection on the due process claim.

19

Mr. Ho’s entries of 5/21/2013 and 7/17/2013 are denied for vagueness. The former

20 is on discussions without identifying with whom. The latter does not describe the legal issue

21 researched and should not be compensable. Mr. Chien’s entries of 1/18/2013, 1/22/2013,

22 5/21/2013, 5/29/2013, 5/30/2013, 6/3/2013, 8/20/2013, 8/27/2013, 9/11/2013, 9/19/2013 and

23 10/9/2013 are all disallowed as devoted to the state-law claims. Mr. McNeill’s entry of

24 10/7/2013 and Mr. Ho’s entry of 8/27/2013 are denied as devoted to the state-law claims.

25 26 3 Plaintiff’s summary description for each project is from Mr. Ho’s supplemental declaration
in response to the November 23 Order. (Dkt. 316-2, pgs. 6-18.)

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1 Ms. Chien’s entry of 5/22/2013 and Mr. Ho’s entries of 5/22/2013 and 10/9/2013 all contain

2 a list of recoverable and unrecoverable subjects. Time billed to those entries was reduced by

3 66%, 66% and 50%, respectively.

4 Project No. 3 – Initial Complaint

5

LAS states this project involved working on the initial complaint, including drafting

6 and revisions. LAS billed 26 hours and requests $13,445.80. CDCR objects to one entry as

7 unrelated to this project. This report agrees. SPB objects to two entries, contending they are

8 unrecoverable as related to Plaintiff’s administrative appeal before SPB.

9

The report makes a $878.90 reduction and finds $12,566.90 is reasonable. Mr.

10 McNeill’s entries of 10/7/2013, 10/8/2013 and 10/9/2013 are denied for vagueness. The

11 subject(s) of the email correspondence are not described and, thus, should not be

12 compensable. Ms. Ponce’s entry of 2/27/2014 is not for this project, and occurred over two

13 months after service of the initial complaint and summons on Defendants. For the reasons

14 discussed below in Project No. 91, this report overrules SPB’s objection on Plaintiff’s

15 administrative appeal before SPB.

16 Project No. 4 – First Amended Complaint

17

LAS states this project involved revising the “original complaint to correct technical

18 errors.” (Ho Suppl. Decl. 7.) LAS billed 10.4 hours and seeks $6,851.60. Defendants

19 object to this entire project, arguing any technical errors on LAS’s part should not be

20 chargeable to them. This report agrees.

21

This report finds no reasonable fees should be awarded.

22 Project No. 5 – Second Amended Complaint

23

LAS states this project involved reviewing Defendants’ Rule 12(b)(6) motions to

24 dismiss the First Amended Complaint; meeting and conferring with Defendants regarding

25 stipulations to filing of Second Amended Complaint and drafting the Second Amended

26 Complaint. LAS billed 24.6 hours and seeks $13,004.40. Defendants object to several

REPORT AND RECOMMENDATION

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1 entries as unrelated to this project. SPB also objects to any work tied to Plaintiff’s

2 unsuccessful due process claim.

3

The report makes a $2,525.90 reduction and finds $10,478.50 is reasonable. Mr.

4 Ho’s entries of 4/14/2014, 4/15/2014 and 4/16/2014 are not for this project. SPB’s objection

5 was rejected in Section III.B above.

6 Project No. 6 – Initial Disclosures

7

LAS states this project involved reviewing Plaintiff’s documents for possible

8 disclosure; making and drafting initial disclosures and reviewing Defendants’ initial

9 disclosures. LAS billed 16.4 hours and requests $9,120.30. CDCR objects to one entry as

10 unrelated to this project. CDCR also objects, arguing the total fees should be reduced by

11 35% because the evidence will be used in two parallel actions in other forums. This

12 objection was rejected in this Section III.C.

13

The report makes a $980.20 reduction and finds $8,140.10 is reasonable. Mr.

14 McNeill’s entry of 3/29/2014 does not describe the email correspondence and, thus, should

15 not be compensable.

16 Project No. 7 – Supplemental Disclosures

17

LAS states this project involved producing supplemental disclosures and reviewing

18 supplemental disclosures from Defendants. LAS billed 3.6 hours and requests $1,288.80.

19 CDCR’s sole objection is the same 35% discovery reduction, which has been rejected.

20

This report finds the requested $1,288.80 is reasonable.

21 Project No. 8 – Case Management Conferences

22

LAS states this project involved work related to case management conferences,

23 including drafting such statements and participating in case management conferences. LAS

24 billed 9.3 hours and requests $4,430.10. Defendants lodged no objections.

25

This report finds the requested $4,430.10 is reasonable. Paralegal fees were not re-

26 calculated using the $150 reasonable rate, because the implicit hourly rates LAS used for

REPORT AND RECOMMENDATION

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1 Ms. Sheppard in this project is $150. (Dkt. 315-1, pg. 12; Mini-Charts 1.)

2 Project No. 9 – Plaintiff's Document Productions

3

LAS states this project involved the review of Defendants’ requests for production of

4 documents, review of Plaintiff’s documents for possible production and drafting of

5 objections and responses. LAS billed 17.4 hours and requests $3,527.80. CDCR’s sole

6 objection is the same 35% discovery reduction, which has been rejected.

7

This report makes a $940.20 reduction and finds $2,587.60 is reasonable. Ms.

8 Chien’s entry of 7/16/2014 is disallowed. It is unclear how the task is related to Plaintiff’s

9 document production(s). Ms. Garcia’s fees were not re-calculated using the $150 reasonable

10 rate, because the average implicit hourly rate LAS used for her in this project is below $150.

11 (Dkt. 315-1, pg. 13; Mini-Charts 2.) Ms. Ponce’s fees were re-calculated at the $150 rate

12 found in Section II.C above. (Mini-Charts 2.)

13 Project No. 10 – Review, Analyze and Code Defendants’ Document Productions

14

LAS states this project involved reviewing Defendants’ document productions,

15 including document analysis and issue coding. LAS billed 207.7 hours and requests

16 $40,271.10. CDCR’s sole objection is the same 35% discovery reduction, which has been

17 rejected. Neither defendant objected to the billed hours as excessive or clerical. Indeed,

18 only 21.2 hours were billed by attorneys. The remaining 186.5 hours were billed by

19 paralegals. This report praises LAS for using one paralegal to do the vast majority of

20 document review.

21

This report makes a $2,246.70 reduction and finds $38,024.40 is reasonable. Ms.

22 Sheppard’s entry of 9/4/2013 is disallowed as erroneous. Plaintiff’s action was filed on

23 December 9, 2013. Ms. Sheppard’s entries of 7/18/2014, 7/20/2014 and 7/21/2014 are

24 denied as not for this project. Ms. Sheppard’s fees were not re-calculated using the $150

25 reasonable rate, because the implicit hourly rates LAS used for her in this project are at or

26 below $150 per hour. (Dkt. 315-1, pg. 13-26; Mini-Charts 2.) Ms. Ponce’s 25.3 hours is re-

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1 calculated at the $150 rate found in Section II.C above. (Mini-Charts 2.)

2 Project No. 11 – On-Site Review of Defendants’ Documents

3

LAS states this project involved discussions with SPB regarding the onsite review of

4 appeals files and conducting such onsite review. LAS billed 33.3 hours (including travel to

5 Sacramento) and seeks $7,768. CDCR’s sole objection is the same 35% discovery

6 reduction, which has been rejected. SPB lodged no objection.

7

This report finds the requested $7,768 is reasonable.

8 Project No. 12 – CDCR'S Motion to Dismiss FAC

9

LAS states this project involved reviewing CDCR’s motion to dismiss the First

10 Amended Complaint. LAS billed 5.6 hours and requests $3,113.60. CDCR lodged no

11 objections.

12

This report finds the requested $3,113.60 is reasonable.

13 Project No. 13 – SPB’s Motion to Dismiss FAC

14

LAS states this project involved reviewing SPB’s motion to dismiss the First

15 Amended Complaint. LAS billed 2.2 hours and requests $1,621.10. SPB lodged no

16 objections.

17

This report finds the requested $1,621.10 is reasonable.

18 Project No. 14 – CDCR’s Motion to Dismiss SAC

19

LAS states this project involved researching, drafting and finalizing Plaintiff’s

20 opposition to CDCR’s motion to dismiss the Second Amended Complaint. LAS billed 70.1

21 hours and requests $32,142.70. CDCR lodged no objections. Curiously, SPB objects to any

22 work within this project on Plaintiff’s unsuccessful due process claim, but SPB does not

23 object to LAS’s fees for opposing SPB’s separate motion to dismiss (see Project No. 15).

24

This report makes a $2,827.50 reduction and finds $29,315.20 is reasonable. Mr.

25 Ho’s entry of 5/1/2014 is denied as duplicative and unnecessary. He attended the hearing,

26 but Ms. Chien did the oral arguments. SPB’s objection based on the due process claim was

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1 rejected in Section III.B above. Moreover, SPB cites no legal authority validating its

2 method of determining the recoverable percentage. SPB requests a 40% reduction based on

3 6 out of 14 pages of argument in Plaintiff’s opposition. This may be an unreliable

4 correlation to hours actually expended by LAS.

5 Project No. 15 – SPB’s Motion to Dismiss SAC

6

LAS states this project involved researching, drafting and finalizing Plaintiff’s

7 opposition to SPB’s motion to dismiss. LAS billed 41.1 hours and requests $13,063.40.

8 SPB lodged no objections.

9

This report makes a $1,590 reduction and finds $11,473.40 is reasonable. All of Ms.

10 Sheppard’s entries are denied as not for this project. Her work is expressly tied to opposing

11 SPB’s motion for summary judgment. It also occurred five months after Ms. Chien drafted

12 the opposition to SPB’s motion to dismiss. (Dkt. 315-1, pg. 29.)

13 Project No. 16 – Analyze and Develop Strategy Regarding Court’s Order Regarding

14 Motion to Dismiss SAC

15

LAS states this project involved reviewing the Court’s order granting and denying

16 Defendants’ motions to dismiss. LAS billed 8.2 hours and requests $5,351.20. Defendants

17 lodged no objections.

18

This report finds the requested $5,351.20 is reasonable.

19 Project No. 17 – Not Used

20 Project No. 18 – Protective Order

21

LAS states this project involved meeting and conferring with opposing counsel

22 concerning the protective order applicable to discovery productions. LAS billed 4.4 hours

23 and seeks $1,852.40. Defendants lodged no objections.

24

This report finds the requested $1,852.40 is reasonable.

25 Project No. 19 – Motion for Leave to Amend and File TAC

26

LAS states this project involved researching, drafting and finalizing Plaintiff’s

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1 renewed motion for leave to file the Third Amended Complaint; reviewing and replying to

2 Defendants’ oppositions to same; and reviewing the Court’s order granting motion to file the

3 Third Amended Complaint. LAS billed 144.9 hours and requests $64,458.60. CDCR

4 lodged no objections. SPB objects, arguing all work on Plaintiff’s unsuccessful bid for a

5 due process violation and systemic injunctive relief should be denied. It identifies two

6 specific entries.

7

The report makes a $1,319.50 reduction and finds $63,139.10 is reasonable. Mr.

8 Ho’s entry of 7/8/2014 is denied as duplicative and unnecessary. He attended the hearing,

9 but Ms. Chien did the oral arguments. SPB’s objection based on the due process claim was

10 rejected in Section III.B above. Likewise, SPB’s objection based on work for injunctive

11 relief is denied. Such work is related to Plaintiff’s successful Title VII claim.

12 Project No. 20 – Oppose CDCR'S First MSJ

13

LAS states this project involved reviewing, researching, drafting and finalizing

14 Plaintiff’s opposition to CDCR’s first motion for summary judgment. LAS billed 116.3

15 hours and seeks $68,877.10. Defendants object to numerous entries as chronologically

16 outside the timeline for this project. SPB also objects to any work tied to Plaintiff’s

17 unsuccessful due process claim.

18

This report makes a $9,305.70 reduction and finds $59,571.40 is reasonable. All

19 eight entries before July 8, 2014 are denied. They occurred before CDCR filed its motion

20 for summary judgment. (Dkt. 66.) Moreover, most of these entries are not for this project.

21 The entries of 5/14/2014 and 6/27/2014 on legal research arguably for this project is

22 nonetheless denied. It is reasonable to do such work after seeing CDCR’s motion

23 arguments, especially since this was its first summary judgment motion. Ms. Chien’s entries

24 of 7/15/2014 and 12/8/2014 are denied as not for this project. Mr. Ho’s entry of 9/30/2014

25 is denied as duplicative and unnecessary. He attended the hearing, but Ms. Chien did the

26 oral arguments. Ms. Chien’s entry of 12/17/2014 is denied. It occurred more than two

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1 months after the hearing. Ms. Sheppard’s implicit hourly rate for this project is already at

2 $150. (Mini-Charts 3.) SPB’s objection based on the due process claim was rejected in

3 Section III.B above.

4 Project No. 21 – Oppose SPB'S First MSJ

5

LAS states this project involved reviewing, researching, drafting and finalizing

6 Plaintiff’s opposition to SPB’s first motion for summary judgment. LAS billed 31.6 hours

7 and requests $13,849.10. SPB objects to all fees for this entire project, arguing Plaintiff’s

8 opposition was devoted exclusively to his failed procedural due process claim.

9

This report finds the requested $13,849.10 is reasonable. SPB’s objection based on

10 the due process claim was rejected in Section III.B above. Moreover, while it is tempting to

11 deny all fees for this project, this report will not do so at the risk of double counting any

12 reduction of awardable fees vis-à-vis the extent of Plaintiff’s overall success in this action.

13 Focus on the overall results achieved is addressed below in Section IV.B.

14 Project No. 22 – Analyze Court’s Order Denying MSJs

15

LAS states this project involved reviewing the Court’s order denying Defendants’

16 summary judgment motions. LAS billed 0.2 hour and requests $150.80.

17

The report finds the requested $150.80 is reasonable.

18 Project No. 23 – First Settlement Conference

19

LAS states this project involved preparing for the initial settlement conference,

20 including drafting submissions and reviewing of Defendants’ submissions, as well as

21 attending the conference. LAS billed 40.4 hours and requests $26,778.80. SPB objects,

22 arguing time expended on Plaintiff’s unsuccessful claims should be denied.

23

This report makes a reduction of $3,048.70 and finds $23,730.10 is reasonable. Mr.

24 Ho’s entry of 7/10/2014 is disallowed due to vagueness on discussions without identifying

25 with whom. Except for the 7/15/2014 entries on conferring with Plaintiff, the rest of Ms.

26 Chien’s entries are disallowed. Her limited contribution and attendance at the settlement

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1 conference appear unnecessarily duplicative of Mr. Ho’s work, who also attended the

2 settlement conference and took the laboring oar in drafting Plaintiff’s settlement conference

3 statement. SPB’s objection based on work for injunctive relief is denied. Such work is

4 related to Plaintiff’s successful Title VII claim.

5 Project No. 24 – Analyze Defendants’ Answers to TAC

6

LAS states this project involved reviewing Defendants’ Answers to the Third

7 Amended Complaint and legal research concerning same. LAS billed 0.8 hour and requests

8 $603.20.

9

This report finds the requested $603.20 is reasonable.

10 Project No. 25 – Interrogatories to CDCR

11

LAS states this project involved reviewing and conducting needed factual inquiries,

12 drafting objections and responses to CDCR interrogatories. LAS billed 8.4 hours and

13 requests $4,476.40. CDCR’s sole objection is the same 35% discovery reduction, which has

14 been rejected.

15

This report makes a $377 reduction and finds $4,099.40 is reasonable. Mr.

16 McNeill’s entries on 2/25/2014 and 2/28/2014 are disallowed. The tasks seem unnecessarily

17 duplicative for interrogatories when Mr. Ho is already supervising.

18 Project No. 26 – Interrogatories to SPB

19

LAS states this project involved reviewing and conducting needed factual inquiries,

20 drafting objections and responses to SPB interrogatories. LAS billed 2.6 hours and requests

21 $1,960.40. Defendants object, arguing for the same 35% discovery reduction, which has

22 been rejected. SPB also objects to any work tied to Plaintiff’s unsuccessful procedural due

23 process claim, which likewise has been rejected in Section III.B above.

24

This report finds the requested $1,960.40 is reasonable.

25 Project No. 27 – Requests for Production to CDCR

26

LAS states this project involved drafting, revising and finalizing requests for

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1 production of documents to CDCR. LAS billed 45.1 hours and requests $26,004.30.

2 CDCR’s sole objection is the same 35% discovery reduction, which has been rejected.

3

This report finds the requested $26,004.30 is reasonable.

4 Project No. 28 – Requests for Production to SPB

5

LAS states the project involved drafting, revising and finalizing requests for

6 production of documents to SPB. LAS billed 12.3 hours and requests $5,945.90.

7 Defendants object, arguing for the same 35% discovery reduction, which has been rejected.

8 SPB also objects to any work tied to Plaintiff’s unsuccessful procedural due process claim,

9 which likewise has been rejected in Section III.B above.

10

The report makes a $527.80 reduction and finds $5,418.10 is reasonable. Mr. Ho’s

11 entries on 7/30/2014 and 3/12/3015 are disallowed. The tasks appear unrelated to this

12 project.

13 Project No. 29 – Requests for Admission CDCR

14

LAS states this project involved drafting, revising and finalizing requests for

15 admission to CDCR. LAS billed 5.9 hours and requests $4,252.50. CDCR’s sole objection

16 is the same 35% discovery reduction, which has been rejected.

17

This report makes a $848.25 reduction and finds $3,404.25 is reasonable. Mr. Ho’s

18 entry of 12/7/2014 is reduced by 50%. It is unclear what the second task is and how it was

19 related to this project.

20 Project No. 30 – Requests for Admission to SPB

21

LAS states this project involved drafting, revising and finalizing requests for

22 admission to SPB. LAS billed 3.8 hours and requests $2,429.60. Defendants object,

23 arguing for the same 35% discovery reduction, which has been rejected. SPB also objects to

24 any work tied to Plaintiff’s unsuccessful procedural due process claim, which likewise has

25 been rejected in Section III.B above.

26

This report finds the requested $2,429.60 is reasonable.

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1 Project No. 31 – Respond to CDCR’s Requests for Production

2

LAS states this project involved drafting and revising responses to CDCR’s requests

3 for production. LAS billed 13.3 hours and requests $8,363.10. CDCR’s sole objection is

4 the same 35% discovery reduction, which has been rejected.

5

The report makes a $565.50 reduction and finds $7,797.60 is reasonable. Mr. Ho’s

6 entry of 2/19/2015 is disallowed due to vagueness on discussions without identifying with

7 whom.

8 Project No. 32 – Not Used

9 Project No. 33 – Bendick Expert Report

10

LAS states this project involved discussions with expert witness Dr. Bendick

11 regarding case issues, identifying subjects of opinion including adverse impact and

12 coordinating drafting of expert report. LAS billed 24.2 hours and requests $11,463.80.

13 Defendants lodged no objections.

14

This reports makes a $289.90 reduction and finds $11,173.90 is reasonable. Ms.

15 Sheppard’s entry on 1/23/2015 has been excised. Her work was clerical and not legal in

16 nature. Mr. McNeill’s entry on 9/29/2014 is disallowed. His review of an email between

17 Mr. Ho and Dr. Bendick seems unnecessary.

18 Project No. 34 – Hausknecht Expert Report

19

LAS states this project involved discussions with expert witness Professor

20 Hausknecht regarding case issues, identifying subjects of opinion including alternatives to

21 Question 75 and coordinating drafting of expert report. LAS billed 11.8 hours and requests

22 $8,897.20. Defendants lodged no objections.

23

This report makes a $603.20 reduction and finds $8,294 is reasonable. Mr.

24 McNeill’s entry on 12/30/2014 is disallowed per the “Should be no charge” notation. He

25 was reviewing an expert retainer letter. Mr. Ho’s entry on 3/24/2015 for emails with experts

26 and internal discussions both regarding travel dates/logistics is disallowed as administrative

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1 work not legal in nature.

2 Project No. 35 – Kurlychek Expert Report

3

LAS states this project involved discussions with expert witness Professor Kurlychek

4 regarding case issues, identifying subjects of opinion including job-relatedness of Question

5 75 and coordinating drafting of expert report. LAS billed 14.4 hours and requests

6 $8,421.50. Defendants lodged no objections.

7

The report makes a $693 reduction and finds $7,728.50 is reasonable. Ms.

8 Sheppard’s entry on 1/26/2015 is disallowed. Her work was clerical and not legal in nature.

9 Project No. 36 – Vasquez Expert Report

10

LAS states this project involved discussions with expert witness Mr. Vazquez

11 regarding case issues, identifying subjects of opinion including Plaintiff’s suitability for hire

12 by CDCR and coordinating drafting of expert report. LAS billed 21.5 hours and requests

13 $15,856.50. Defendants lodged no objections.

14

This report finds the requested $15,856.50 is reasonable.

15 Project No. 37 – Hing Expert Report

16

LAS states this project involved discussions with expert witness Professor Hing

17 regarding case issues, identifying subjects of opinion including Plaintiff’s immigration

18 history and coordinating drafting of expert report. LAS billed 11.4 hours and requests

19 $5,467.20. Defendants lodged no objections.

20

This report finds the requested $5,467.20 is reasonable.

21 Project No. 38 – Chen Expert Report

22

LAS states this project involved discussions with expert witness Professor Chen

23 regarding case issues, identifying subjects of opinion including Plaintiff’s filing of tax

24 returns using his ITIN and coordinating drafting of expert report. LAS billed 6.3 hours and

25 requests $3,285. Defendants lodged no objections.

26

This report finds the requested $3,285 is reasonable.

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1 Project No. 39 – Prepare for and Depose R. O’Brien (Two Depositions)

2

LAS states this project involved preparing for and taking two depositions of CDCR’s

3 Rule 30(b)(6) witness and proffered expert witness. LAS billed 55.8 hours (including travel

4 to Sacramento) and requests $37,825.90. CDCR’s sole objection is the same 35% discovery

5 reduction, which has been rejected.

6

This report makes a $640.90 reduction and finds $37,185 is reasonable. Mr. Ho’s

7 entries on 2/2/2015 and 2/5/2015 are disallowed due to vagueness on discussions without

8 identifying with whom. Mr. McNeill’s entry on 2/18/2015 is deleted for apparently

9 unnecessary review of emails between Mr. Ho and Defendants’ counsel. Paralegal fees

10 were not re-calculated using the $150 reasonable rate, because the implicit hourly rates LAS

11 used for Ms. Ponce and Ms. Sheppard in this project are at or below $150 per hour. (Dkt.

12 315-1, pg. 50-52; Mini-Charts 5.)

13 Project No. 40 – Deposition of D. Starnes

14

LAS states this project involved preparing for and taking the deposition of CDCR’s

15 proffered expert witness. LAS billed 13.7 hours and requests $8,798.40. CDCR’s sole

16 objection is the same 35% discovery reduction, which has been rejected.

17

This report makes a $39 reduction and finds $8,759.40 is reasonable. The reduction

18 is for 2.6 paralegal hours re-calculated at the $150 rate found in Section II.C above. (Mini-

19 Charts 5.)

20 Project No. 41 – Deposition of V. Myers

21

LAS states this project involved preparing for and taking the deposition of a named

22 CDCR defendant and background investigator. LAS billed 22.3 hours (including travel) and

23 requests $8,737.70. CDCR’s sole objection is the same 35% discovery reduction, which has

24 been rejected.

25

This reports makes a $188.50 reduction and finds $8,549.20 is reasonable. Mr. Ho’s

26 entry on 7/11/2014 is disallowed for vagueness.

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1 Project No. 42 – Deposition of D. Sharp

2

LAS states this project involved preparing for and taking the deposition of a named

3 CDCR defendant and background investigator. LAS billed 11.1 hours and requests

4 $7,485.90. CDCR’s sole objection is the same 35% discovery reduction, which has been

5 rejected.

6

This report makes a $22.50 reduction and finds $7,463.40 is reasonable. The

7 reduction is for 1.5 paralegal hours re-calculated at the $150 rate found in Section II.C

8 above. (Mini-Charts 5.)

9 Project No. 43 – Prepare for and Depose J. Dumond

10

LAS states this project involved preparing for and taking the deposition of CDCR’s

11 expert witness and labor economist. LAS billed 32.4 hours and requests $15,284.

12 Defendants lodged no objections.

13

This report makes a $156.80 reduction and finds $15,127.20 is reasonable. Mr.

14 McNeill’s entry of 2/9/2015 is disallowed. It is unclear how his work was related to this

15 project. Ms. Ponce’s 0.4 hour is re-calculated at the $150 rate found in Section II.C above.

16 (Mini-Charts 5.)

17 Project No. 44 – Prepare for and Depose B. Leashore

18

LAS states this project involved preparing for and taking the deposition of a named

19 SPB defendant and personnel analyst. LAS billed 15.6 hours (including travel) and requests

20 $5,657. Defendants object, arguing for the same 35% discovery reduction, which has been

21 rejected. SPB also objects to any work tied to Plaintiff’s unsuccessful procedural due

22 process claim, which likewise has been rejected in Section III.B above.

23

The report makes a $21 reduction and finds $5,636 is reasonable. Ms. Ponce’s 1.4

24 hours is re-calculated at the $150 rate found in Section II.C above. Ms. Sheppard’s implicit

25 hourly rate for this project is already at $150. (Mini-Charts 5.)

26 Project No. 45 – Prepare for and Depose C. Lopez

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1

LAS states this project involved preparing for and taking the deposition of SPB’s

2 Rule 30(b)(6) witness. LAS billed 12.3 hours (including travel) and requests $4,446.90.

3 Defendants object, arguing for the same 35% discovery reduction, which has been rejected.

4 SPB also objects to any work tied to Plaintiff’s unsuccessful procedural due process claim,

5 which likewise has been rejected in Section III.B above.

6

The report makes a $6 reduction and finds $4,440.90 is reasonable. Ms. Ponce’s 0.4

7 hour is re-calculated at the $150 rate found in Section II.C above.

8 Project No. 46 – Prepare for and Depose P. Ramsey

9

LAS states this project involved preparing for and taking the deposition of SPB’s

10 Rule 30(b)(6) witness and Chief of Appeals Unit. LAS billed 18.3 hours (including travel)

11 and requests $7,029.40. Defendants object, arguing for the same 35% discovery reduction,

12 which has been rejected. SPB also objects to any work tied to Plaintiff’s unsuccessful

13 procedural due process claim, which likewise has been rejected in Section III.B above.

14

The report finds the requested $7,029.40 is reasonable. Ms. Sheppard’s implicit

15 hourly rate for this project is already at $150. (Mini-Charts 5.)

16 Project No. 47 – Prepare for and Depose M. Lagrandeur

17

LAS states this project involved preparing for and taking the deposition of SPB’s

18 Rule 30(b)(6) witness. LAS billed 12.6 hours (including travel) and requests $4,416.30.

19 Defendants object, arguing for the same 35% discovery reduction, which has been rejected.

20 SPB also objects to any work tied to Plaintiff’s unsuccessful procedural due process claim,

21 which likewise has been rejected in Section III.B above.

22

The report makes a $239.30 reduction and finds $4,177 is reasonable. Mr. Ho and

23 Ms. Ponce’s entries of 12/30/2014 are disallowed due to an apparent error. Ms. Ponce’s

24 entry on 1/5/2015 is deleted, because it is clerical and not legal in nature. Ms. Ponce’s 0.4

25 hour on 12/29/2014 is re-calculated at the $150 rate found in Section II.C above.

26 Project No. 48 – Prepare for and Defend Plaintiff’s Deposition

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1

LAS states this project involved preparing Plaintiff for deposition and defending his

2 deposition. LAS billed 32.3 hours (including travel) and requests $14,364.70. CDCR’s sole

3 objection is the same 35% discovery reduction, which has been rejected. SPB lodges no

4 objections.

5

The report makes a $28.50 reduction and finds $14,336.20 is reasonable. Ms.

6 Ponce’s 1.9 hours is re-calculated at the $150 rate found in Section II.C above.

7 Project No. 49 – Prepare for and Make Record at M. Bendick Deposition

8

LAS states this project involved preparing expert witness Dr. Bendick for deposition

9 and defending his deposition. LAS billed 32.4 hours and requests $18,727.20. Defendants

10 lodged no objections.

11

This report finds the requested $18,727.20 is reasonable.

12 Project No. 50 – Prepare for and Make Record at D. Vasquez Deposition

13

LAS states this project involved preparing expert witness Mr. Vasquez for his

14 deposition and defending his deposition. LAS billed 9.0 hours and requests $6,550.40.

15 Defendants lodged no objections.

16

This report finds the requested $6,550.40 is reasonable.

17 Project No. 51 – Prepare for and Make Record at J. Hausknecht Deposition

18

LAS states this project involved preparing expert witness Professor Hausknecht for

19 his deposition and defending his deposition. LAS billed 23.7 hours (including travel to New

20 York) and requests $17,832.10. Defendants lodged no objections.

21

This report finds the requested $17,832.10 is reasonable.

22 Project No. 52 – Prepare for and Make Record at M. Kurlychek Deposition

23

LAS states this project involved preparing expert witness Professor Kurlycheck for

24 her deposition and defending her deposition. LAS billed 20.3 hours (including travel to

25 New York) and requests $15,306.20. Defendants lodged no objections.

26

This report finds the requested $15,306.20 is reasonable.

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1 Project No. 53 – Prepare for and Make Record at B. Hing Deposition

2

LAS states this project involved preparing expert witness Professor Hing for his

3 deposition and defending his deposition. LAS billed 4.4 hours and requests $1,812.80.

4 Defendants lodged no objections.

5

This report finds the requested $1,812.80 is reasonable.

6 Project No. 54 – Prepare for and Make Record at C. Chen Deposition

7

LAS states this project involved preparing expert witness Professor Chen for her for

8 deposition and defending her deposition. LAS billed 5.0 hours and requests $1,790.

9 Defendants lodged no objections.

10

This report finds the requested $1,790 is reasonable.

11 Project No. 55 – Oppose CDCR'S Second MSJ

12

LAS states this project involved reviewing, researching and drafting Plaintiff’s

13 opposition to CDCR’s second summary judgment motion. LAS billed 108.6 hours and

14 requests $60,734. Defendants object to numerous entries as chronologically outside the

15 timeline for this project.

16

The report makes a $8,775.50 reduction and finds $51,958.50 is reasonable. All

17 twelve entries spanning a period of six months before March 12, 2015 are denied. They

18 occurred before CDCR filed its second motion for summary judgment. (Dkt. 121.)

19 Moreover, these entries are not for this project. Ms. Webb’s entries of 4/8/2015, 4/9/2015,

20 4/14/2015 and 4/17/2015 are denied. Tasks there were duplicative and unnecessary,

21 especially participating in moot court. Ms. Garcia’s fees were re-calculated at the $150 rate

22 found in Section II.C above. (Mini-Charts 7.)

23 Project No. 56 – Oppose SPB'S Second MSJ

24

LAS states this project involved reviewing, researching and drafting Plaintiff’s

25 opposition to SPB’s second summary judgment motion. LAS billed 38 hours and requests

26 $18,948.10. Defendants object to two entries as chronologically outside the timeline for this

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1 project. SPB also objects to any work tied to Plaintiff’s unsuccessful due process claim.

2

This report makes a $3,204.50 reduction and finds $15,743.60 is reasonable. The

3 two entries before March 12, 2015 are denied. They occurred before SPB filed its second

4 motion for summary judgment. (Dkt. 125.) Additionally, these entries are not for this

5 project. SPB’s objection based on the due process claim was rejected in Section III.B

6 above. Moreover, SPB cites no legal authority validating its method of determining the

7 recoverable percentage. SPB requests a 50% reduction based on 13 out of 21 pages of

8 argument in Plaintiff’s opposition. This may be an unreliable correlation to hours actually

9 expended by LAS.

10 Project No. 57 – Plaintiff’s MSJ Against CDCR

11

LAS states this project involved researching, compiling evidence, drafting the

12 opening and reply briefs regarding Plaintiff’s motion for summary judgment against CDCR.

13 As corrected via an errata at Dkt. 316-2, LAS billed 197.4 hours and requests $111,923.50.

14 Defendants lodged no objections.

15

The report makes a $2,715.10 reduction and finds $109,208.40 is reasonable. Mr.

16 Ho’s entry of 4/1/2015 is denied as not for this project. Mr. Ho’s entry of 4/14/2015 is

17 denied as duplicative and unnecessary. He attended the hearing, but Ms. Chien did the oral

18 arguments. Ms. Garcia’s and Ms. Ponce’s fees were re-calculated at the $150 rate found in

19 Section II.C above. (Mini-Charts 7, Ms. Ponce’s fees were mistakenly listed in Project 58.)

20 Project No. 58 – Plaintiff’s MSJ Against SPB

21

LAS states this project involved researching, compiling evidence, drafting the

22 opening and reply briefing on Plaintiff’s motion for summary judgment against SPB. LAS

23 billed 56.9 hours and requests $24,363.20. Except raising a minor discrepancy of 1.4 hours

24 (corrected here), CDCR lodged no other objections. SPB objects to any work tied to

25 Plaintiff’s unsuccessful due process claim.

26

The report makes a $875.40 reduction and finds $23,487.80 is reasonable. Ms.

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1 Ponce’s entry of 9/1/2014 and Ms. Chien’s entry of 4/1/2015 are denied. They are not for

2 this project. SPB’s objection based on the due process claim was rejected in Section III.B

3 above.

4 Project No. 59 – Analyze and Develop Strategy Re Court’s Order Re Cross-Motions

5 for Summary Judgment

6

LAS states this project involved reviewing and analyzing the Court’s omnibus order

7 regarding the parties’ cross-motions for summary judgment. LAS billed 0.5 hour and

8 requests $377. Defendants lodged no objections.

9

This report finds the requested $377 is reasonable.

10 Project No. 60 – Plaintiff’s Pretrial Disclosures

11

LAS states this project involved reviewing FRCP requirements; assembling and

12 drafting matters for pretrial disclosures; researching and drafting objections to Defendants’

13 pretrial disclosures; responding to Defendant’s objections of Plaintiff’s pretrial disclosures;

14 reviewing Defendants’ replies to objections; and filing amended disclosures. LAS billed

15 21.2 hours and requests $10,892.80. Defendants lodged no objections.

16

This report makes a $43.50 reduction and finds $10,849.30 is reasonable. The

17 reduction is for 2.9 paralegal hours re-calculated at the $150 rate found in Section II.C

18 above. (Mini-Charts 7.)

19 Project No. 61 – Analyze Defendants’ Pretrial Disclosures

20

LAS did not provide a summary description of this project. It billed 1.5 hours and

21 requests $812.30. Defendants lodged no objections.

22

This report finds the requested $812.30 is reasonable.

23 Project No. 62 – Joint Statement Regarding Jury Trial

24

LAS states this project involved researching and preparing submissions on the

25 necessity for jury trial, meeting and conferring with Defendants regarding the same,

26 reviewing Defendants’ submissions and participating in the hearing. LAS billed 3.0 hours

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1 and requests $2,224.30. Defendants lodged no objections.

2

The report makes a $226.20 reduction and finds $1,998.10 is reasonable. Mr. Ho’s

3 entry of 5/8/2015 is denied. The tasks do not appear to be for this project.

4 Project No. 63 – Response Per Court’s Order Regarding MSJ Factual Issues

5

LAS states this project involved providing supplemental submissions as ordered by

6 the Court regarding the parties’ cross-motions for summary judgment. LAS billed 1.5 hours

7 and requests $853.80 in its billing records, despite Mr. Ho’s supplemental declaration

8 seeking 8.2 hours and $5,351.20. (Dkt. 315-1, pg. 70; Dkt. 316-2, pg. 14.) Defendants

9 objected to this discrepancy.

10

This report finds the requested $853.80 is reasonable.

11 Project No. 64 – Court Requested Supplemental Briefing Regarding Preclusion

12

LAS states this project involved responding to the Court’s request for briefing on the

13 adequacy of state administrative procedures. LAS billed 14 hours and requests $5,447.60.

14 SPB objects to all fees for this entire project, arguing it was devoted exclusively to

15 Plaintiff’s failed procedural due process claim.

16

This report finds the requested $5,447.60 is reasonable. SPB’s objection based on

17 the due process claim was rejected in Section III.B above. Moreover, while it is tempting to

18 deny all fees for this project, this report will not do so at the risk of double counting any

19 reduction of awardable fees vis-à-vis the extent of Plaintiff’s overall success in this action.

20 Focus on the overall results achieved is addressed below in Section IV.B.

21 Project No. 65 – Trial Stipulations

22

LAS states this project involved meeting and conferring with Defendants concerning

23 potential trial stipulations. LAS billed 3.8 hours and requests $2,667.20. CDCR objects to

24 one entry as unrelated to this project.

25

The report makes a $2,488.20 reduction and finds $179 is reasonable. Mr. McNeill’s

26 entry of 4/6/2015 is denied as not for this project.

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1 Project No. 66 – Not Used

2 Project No. 67 – CDCR Motion to Quash Beard Subpoena

3

LAS states this project involved the determination of witnesses to be subpoenaed;

4 meeting and confering with CDCR regarding the trial subpoena to Defendant Jeffrey Beard;

5 researching and drafting submissions regarding this dispute. As corrected via an errata at

6 Dkt. 316-2, LAS billed 3.7 hours and requests $2,059. Defendants lodged no objections.

7

This report makes a $48 reduction and finds $2,011 is reasonable. Ms. Alvarez’s 0.8

8 hour is re-calculated at the $325 rate found in Section II.C above. (Mini-Charts 8.)

9 Project No. 68 – Pre-Trial Findings of Fact and Conclusions of Law

10

LAS states this project involved drafting and filing Plaintiff’s proposed findings of

11 fact and conclusions of law and reviewing Defendants’ submissions regarding the same.

12 LAS billed 21.6 hours and requests $12,007.70. Defendants lodged no objections.

13

This report finds the requested $12,007.70 is reasonable.

14 Project No. 69 – Motions in Limine

15

LAS states this project involved determining matters for exclusion at trial; meeting

16 and conferring with Defendants regarding same; researching and drafting motions in limine;

17 and participating in the hearing. LAS billed 101.0 hours and requests $58,757.30.

18 Defendants lodged no objections.

19

The report makes a $2,298 reduction and finds $56,459.30 is reasonable. Ms.

20 Alvarez’s 38.3 hours are re-calculated at the $325 rate found in Section II.C above. (Mini-

21 Charts 8.)

22 Project No. 70 – Pretrial Conference Filings and Conference

23

LAS states this project involved preparing for and participating in the pretrial

24 conference, including work on related court filings. LAS billed 58.4 hours and requests

25 $30,852.90. Defendants lodged no objections.

26

The report makes a $782.30 reduction and finds $30,070.60 is reasonable. Mr.

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1 McNeill’s 12/30/2014 entry is disallowed. The task occurred too far in advance. Ms.

2 Ponce’s 4/3/2015 entry and Mr. McNeill’s 4/14/2015 entry are denied. They do not appear

3 to be for this project. Mr. Ho’s 4/21/2015 entry is denied due to vagueness on discussions

4 without identifying with whom.

5 Project No. 71 – Plaintiff’s Trial Brief

6

LAS states this project involved researching and drafting the trial brief. LAS billed

7 16.0 hours and seeks $11,392.70. Defendants lodged no objections.

8

The report finds the requested $11,392.70 is reasonable.

9 Project No. 72 – Prepare Cross-Examinations, Including Deposition Designations

10

LAS states this project involved preparing for cross-examinations of Defendants’

11 witnesses and experts. LAS billed 119.8 hours and requests $60,747.70. Defendants lodged

12 no objections.

13

The report makes a $1,732.70 reduction and finds $59,015 is reasonable. Mr. Ho’s

14 entries on 6/22/2015 and 6/29/2015 are not for this project. They occurred after the end of

15 the bench trial. Per Section II.C above, Ms. Alvarez’s 2.8 hours were re-calculated at the

16 $325 rate, and 26.4 paralegal hours re-calculated at the $150 rate. (Mini-Charts 9.)

17 Project No. 73 – Prepare Direct Examinations

18

LAS states this project involved preparing for direct examinations of Plaintiff,

19 Plaintiff’s experts and Plaintiff’s other witnesses. LAS billed 171.7 hours and requests

20 $82,616.70. Except raising a minor discrepancy of 0.2 hour (corrected here), Defendants

21 lodged no other objections.

22

This report makes a $7,536.20 reduction and finds $75,080.50 is reasonable. Mr.

23 McNeill’s entry of 4/12/2015 is denied as too vague. Mr. Ho’s entries of 5/1/2015 and

24 5/5/2015 are disallowed as not for this project. Mr. McNeill’s entry of 5/13/2015 is denied

25 as not for this project. Ms. Chien’s entries of 5/15/2015 and 5/31/2015 (for 0.9 hour) are

26 denied. They were not for this project. Ms. Chien’s entry of 6/2/2015 (for 2.9 hours) is

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1 disallowed as unnecessary and duplicative. Only Mr. Ho was needed to meet with Plaintiff

2 to prepare for trial testimony. (Dkt. 315-1 pg. 85, 91.) Ms. Ponce’s entries of 6/11/2015 are

3 disallowed as not for this project.

4

Ms. Garcia’s fees were re-calculated at the $150 rate found in Section II.C above.

5 Ms. Ponce’s fees were not re-calculated using the $150 rate, because the average implicit

6 hourly rate LAS used for her in this project is at or below $150. (Mini-Charts 9.)

7 Project No. 74 – Prepare and Select Trial Exhibits

8

LAS states this project involved deciding upon and preparing exhibits for use at trial.

9 LAS billed 148.7 hours and requests $29,799.30. Except raising a minor discrepancy of 0.2

10 hour (corrected here), Defendants lodged no other objections.

11

The report makes a $7,091.30 reduction and finds $22,708 is reasonable. Mr. Ho’s

12 entry of 1/7/2015 is denied as not for this project. The following entries for Ms. Ponce are

13 denied, because the work appears clerical and not legal in nature: 5/14/2015, 5/15/2015,

14 5/18/2015, 6/4/2015 (for 0.9 hour and 4.4 hours), 6/5/2015 (for 4.2 hours), 6/8/2015 (for 6.7

15 hours) and 6/9/2015. The remaining hours for Ms. Ponce were re-calculated using the $150

16 rate found in Section II.C above. Ms. Garica’s fees were also re-calculated using the same

17 $150 rate. (Mini-Charts 9.)

18 Project No. 75 – Trial Graphics

19

LAS states the project involved discussing and creating demonstratives for use at

20 trial. LAS billed 18.3 hours and requests $6,066.50. Defendants lodged no objections.

21

The report makes a $84 reduction and finds $5,982.50 is reasonable. Ms. Ponce’s

22 fees were re-calculated at the $150 rate found in Section II.C above. (Mini-Charts 9.)

23 Project No. 76 – Trial Witness Preparations

24

LAS states this project involved preparing Plaintiff, Plaintiff’s experts and Plaintiff’s

25 other witnesses for trial testimony. LAS billed 52.9 hours and requests $28,647.60.

26 Defendant lodged no objections.

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1

The report makes a $1,412.90 reduction and finds $27,234.70 is reasonable. Mr.

2 McNeill’s entry of 5/14/2015 and Ms. Ponce’s entry of 6/12/2015 are denied as not for this

3 project. Ms. Chien’s entry of 6/2/2015 is disallowed as unnecessary and duplicative. Only

4 Mr. Ho was needed to meet with Plaintiff to prepare for trial testimony. (Dkt. 315-1 pg. 85,

5 91.) Ms. Ponce’s fees were not re-calculated using the $150 rate, because the average

6 implicit hourly rate LAS used for her in this project is below $150. (Mini-Charts 9.)

7 Project No. 77 – Prepare for and Attend Trial Day 1

8

LAS states this project involved preparations for and attendance at the first day of

9 trial. LAS billed 16.7 hours and requests $6,863.90. Defendants lodged no objections.

10

The report makes a $48 reduction and finds $6,815.90 is reasonable. Ms. Ponce’s

11 fees were re-calculated at the $150 rate found in Section II.C above. (Mini-Charts 10.)

12 Project No. 78 – Prepare for and Attend Trial Day 2

13

LAS states this project involved preparations for and attendance at the second day of

14 trial. LAS billed 63.9 hours and requested $15,624.60. Defendants lodged no objections.

15

This report makes a $763.50 reduction and finds $14,861.10 is reasonable. All

16 paralegal hours were re-calculated at the $150 rate found in Section II.C above. (Mini-

17 Charts 10.)

18 Project No. 79 – Prepare for and Attend Trial Day 3

19

LAS states this project involved preparations for and attendance at the third day of

20 trial. LAS billed 58.9 hours and requests $20,175.90. Defendants lodged no objections.

21

This reports makes a $447 reduction and finds $19,728.90 is reasonable. All

22 paralegal hours were re-calculated at the $150 rate found in Section II.C above. (Mini-

23 Charts 10.)

24 Project No. 80 – Prepare for and Attend Trial Day 4

25

LAS states this project involved preparations for and attendance at the fourth day of

26 trial. LAS billed 52.8 hours and requests $18,368.20. Defendants lodged no objections.

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1

This reports makes a $417 reduction and finds $17,951.20 is reasonable. All

2 paralegal hours were re-calculated at the $150 rate found in Section II.C above. (Mini-

3 Charts 10.)

4 Project No. 81 – Prepare for and Attend Trial Day 5

5

LAS states this project involved preparations for and attendance at the fifth day of

6 trial. LAS billed 52.0 hours and requests $19,661.10. Defendants lodged no objections.

7

This reports makes a $343.50 reduction and finds $19,317.60 is reasonable. All

8 paralegal hours were re-calculated at the $150 rate found in Section II.C above. (Mini-

9 Charts 10.)

10 Project No. 82 – Prepare for and Attend Trial Day 6

11

LAS states this project involved preparations for and attendance at the sixth day of

12 trial. LAS billed 25.2 hours and requests $9,462.20. Defendants lodged no objections.

13

This reports makes a $187.50 reduction and finds $9,274.70 is reasonable. All

14 paralegal hours were re-calculated at the $150 rate found in Section II.C above. (Mini-

15 Charts 10.)

16 Project No. 83 – Post-Trial Findings of Fact and Conclusions of Law

17

LAS states this project involved preparing post-trial findings of fact and conclusions

18 of law; and reviewing and responding to Defendants’ submissions regarding same. LAS

19 billed 130.8 hours and requests $85,119.60. Defendants lodged no objections.

20

This report finds the requested $85,119.60 is reasonable.

21 Project No. 84 – Post-Trial Exhibit Issues

22

LAS states this project involved meeting and conferring regarding redaction of trial

23 exhibits with personally identifying information, conducting such redactions and submission

24 to the Court regarding same. LAS billed 39.3 hours and requests $13,296.60. Defendants

25 lodged no objections.

26

The report makes a $188.50 reduction and finds $13,108.10 is reasonable. Mr. Ho’s

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1 entry of 6/22/2015 is disallowed due to vagueness on discussions without identifying with

2 whom. Paralegal fees were not re-calculated using the $150 reasonable rate, because the

3 average implicit hourly rates LAS used for Ms. Ponce and Ms. Garcia in this project are

4 below $150. (Dkt. 315-1, pg. 103-04; Mini-Charts 11.)

5 Project No. 85 – Post-Trial Hearing Regarding Remedies

6

LAS states this project involved reviewing the Court’s Findings of Fact and

7 Conclusions of Law; researching and preparing submissions regarding remedies sought;

8 reviewing Defendants’ responses to same; and participating at the hearing. LAS billed 69

9 hours and seeks $51,440. SPB objects, arguing all work on Plaintiff’s unsuccessful bid for

10 systemic injunctive relief should be denied. It requests a 75% reduction to all fees sought

11 for this project, as well as the denial of two entries expressly mentioning systemic injunctive

12 relief.

13

The report makes a $458.50 reduction and finds $50,981.50 is reasonable. Ms.

14 Webb’s entry of 8/26/2015 is denied as unnecessary. Her work appears duplicative of Mr.

15 McNeill’s role here. While it is tempting to reduce fees here in light of Plaintiff not

16 securing systemic injunctive relief, this report will not do so at the risk of double counting

17 any reduction of awardable fees vis-à-vis the extent of Plaintiff’s overall success in this

18 action. Focus on the overall results achieved is addressed below in Section IV.B.

19 Significantly, all work here was related to Plaintiff’s successful Title VII claim against both

20 CDCR and SPB.

21 Project No. 86 – Second Settlement Conference

22

LAS states this project involved preparing for and participating in the second

23 settlement conference. LAS billed 30 hours and requests $20,925.20. Defendants lodged no

24 objections.

25

The report finds the requested $20,925.20 is reasonable.

26 Project No. 87 – Cost Bill and Motion for Attorney’s Fees and Costs

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1

The project is addressed in Section VI below.

2 Project No. 88 – Trial Team Meetings

3

LAS states this project involved internal discussions to identify, allocate and

4 coordinate pretrial and trial preparation tasks. LAS billed 39.3 hours and requests

5 $21,195.70. Defendants object to all fees for this entire project. They argue this “catch-all”

6 project covering December 11, 2014 to June 15, 2015: (1) violates the November 23 Order

7 requiring specific and discrete projects (not generalized statements like “trial preparations”),

8 (2) contains vague entries like “trial team meeting” or “weekly meeting” that do not allow

9 for meaningful evaluation of claimed time and (3) contains entries that should have been

10 listed under the specific project to which they addressed. This report agrees.

11

This report finds no reasonable fees should be awarded. Admittedly, this was a

12 tough call. Generally, in the hectic run-up toward a looming trial date, it is reasonable to

13 have weekly, all-hands trial prep meetings. Operationally, this helps trial teams on critical

14 decision-making, staying organized, communicating assignments and issues to all team

15 members when the situation may be a moving target and holding team members

16 accountable, if each member presents at the all-hands meeting the status of her respective

17 tasks.

18

Here, however, numerous problems with LAS’s billing entries warrant the denial of

19 all fees. In violation of the November 23 Order, this project serves as an all-purpose catch

20 all for eleven entries which should have been listed elsewhere under specific projects. For

21 example, see entries of 12/11/2014, 3/24/2015, 3/27/2015, 4/21/2015, 5/1/2015, 5/5/2015,

22 5/13/2015. For the remaining entries expressly mentioning weekly trial team meetings, they

23 appear unreliable. First, oddly, Ms. Chien has only two entries (5/11/2015 and 5/18/2015)

24 for weekly trial team meetings, even though she was one of two Plaintiff’s attorneys with a

25 speaking role at trial. Second, for several entries, only one timekeeper billed time for that

26 weekly trial team meeting. For example, see entries of 3/17/2015, 4/6/2015, 4/13/2015,

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1 5/26/2015. Third, for other entries where multiple timekeepers billed time to the same

2 meeting, the amounts of time billed do not match. For example, see entries of 3/23/2015,

3 5/4/2015, 5/11/2015, 5/18/2015, 6/1/2015, 6/8/2015.

4 Project No. 89 – Comparators Issues

5

LAS states this project involved reviewing files of other CDCR applicants excluded

6 because of Question 75, making comparisons between same, creating summaries and

7 reviewing CDCR’s summaries. LAS billed 9.5 hours and requests $5,983. Defendants

8 lodged no objections.

9

The report makes a $386.50 reduction and finds $5,596.50 is reasonable. Mr. Ho’s

10 entry of 4/5/2015 is disallowed due to vagueness on discussions without identifying with

11 whom. Ms. Alvarez’s 3.3 hours were re-calculated at the $325 rate in Section II.B above.

12 (Mini-Charts 11.)

13 Project No. 90 – Client Communications and Meetings

14

LAS states this project involved meetings and other discussions with Mr. Guerrero,

15 including regarding case status, discovery, settlement discussions and preparation for

16 deposition and trial. LAS billed 15.8 hours and requests $7,606.90. Defendants object to all

17 fees for this entire project. They argue this “catch-all” project spanning from March 28,

18 2013 to December 5, 2014: (1) violates the November 23 Order requiring specific and

19 discrete projects (not generalized statements), (2) contains vague entries and (3) contains

20 entries that should have been listed under the specific project(s) to which the attorney-client

21 communications addressed. This report agrees.

22

This report finds no reasonable fees should be awarded.

23 Project No. 91 – CDCR Withhold Issues

24

LAS states this project involved work associated with CDCR’s withhold of

25 Plaintiff’s job application and appeal of same to SPB. LAS billed 16 hours and requests

26 $4,331.80. SPB objects to all fees for this entire project. Citing Manders v. State of Okl. ex

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1 rel. Dep’t of Mental Health, 875 F.2d 263 (10th Cir. 1989), SPB argues all work on

2 Plaintiff’s administrative appeal to SPB is unrecoverable, as SPB’s appeals procedure is not

3 a precondition to maintaining Plaintiff’s Title VII claim, nor is it part of Title VII’s

4 enforcement scheme.

5

This report finds the requested $4,331.80 is reasonable. Assuming arguendo that the

6 characterization of SPB appeals is true, Manders remains distinguishable. There, plaintiff

7 state employees sued their supervisor, employer and state officials, alleging sexual

8 harassment by the supervisor. 875 F.2d at 264. The plaintiffs also requested attorney’s fees

9 under Title VII for legal services performed during the employer’s internal grievance

10 process where the plaintiffs unsuccessfully sought to have the supervisor terminated. Id. at

11 264, 266. The Tenth Circuit affirmed the denial of attorney’s fees, holding the plaintiffs are

12 not entitled to such fees for services performed at an optional grievance process. The Tenth

13 Circuit reasoned the plaintiffs did not have to undergo the internal grievance process before

14 pursuing the mandated administrative procedures that complainants must resort to before

15 filing a Title VII lawsuit in federal district court. Id. at 266-67.

16

Here, whether optional or not, the administrative appeals to SPB were not only a

17 mechanism to seek relief from CDCR’s double rejection of Mr. Guerrero’s job candidacy.

18 In this litigation, the SPB appeals were a crucial part of the actual merits and controversy.

19 (Third Amended Complaint ¶¶ 33-53, 57, 62-79 “TAC”.) Indeed, the Court found SPB

20 liable for violating Title VII due to its inadequate handling and assessment of Mr.

21 Guerrero’s appeal. (FFCL 22.) Thus, it is reasonable for Plaintiff to recover fees for his

22 counsel’s assistance on his second appeal to SPB. See Thornberry v. Delta Air Lines, Inc.,

23 676 F.2d 1240, 1244 (9th Cir. 1982) (affirming the district court’s award of fees for “time

24 the plaintiffs’ attorneys spent in administrative proceedings which were relevant and

25 beneficial in preparing the Title VII claim,” because counsel’s representation was “critical to

26 the success of their subsequent court proceedings”).

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1 Project No. 92 – ADR Issues

2

LAS states this project involved court-mandated ADR selection and conferences

3 with Plaintiff regarding same. LAS explained this is other than the court-supervised

4 mediations. LAS billed 4 hours and requested $1,550.80. Defendants lodged no objections.

5

This report finds the requested $1,550.80 is reasonable.

6 Project No. 93 – Case Analysis

7

LAS states this project involved discussions concerning general case issues,

8 including legal theories, discovery needs, litigation strategy and trial strategy. LAS billed

9 18.8 hours and requests $9,684.10. Defendants object to all fees for this entire project.

10 They argue this “catch-all” project covering July 11, 2014 to July 14, 2015: (1) violates the

11 November 23 Order requiring specific and discrete projects (not generalized statements), (2)

12 contains vague and ambiguous entries and (3) contains entries spanning numerous other

13 projects. This report agrees.

14

This report finds no reasonable fees should be awarded.

15 Project No. 94 – Case and Trial Management Issues, Including Meet and Confers with

16 Opposing Counsel

17

LAS states this project involved the identification and discussion of litigation and

18 trial management issues, including discussions with Defendants’ counsel. As corrected via

19 an errata at Dkt. 316-2, LAS states it billed 52.7 hours and requests $26,834.30. Defendants

20 object to all fees for this entire project. They argue this “catch-all” project covering July 16,

21 2014 to May 5, 2015: (1) violates the November 23 Order requiring specific and discrete

22 projects (not generalized statements), (2) contains vague and ambiguous entries and (3)

23 contains entries spanning numerous other projects. This report agrees.

24

This report finds no reasonable fees should be awarded.

25 Project No. 95 – Trial Subpoenas.

26

LAS states this project involved drafting and overseeing the service of trial

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1 subpoenas to witnesses, including researching requirements and drafting and tracking return

2 of on-call witness letters. As corrected via an errata at Dkt. 316-2, LAS billed 42.8 hours

3 and requests $10,119.90. (Dkt. 315-1, pg. 71, 121-23.) Defendants lodged no objections.

4

The report makes a $3,717.88 reduction and finds $6,402.02 is reasonable. Ms.

5 Webb’s 2/4/2015 entry is disallowed. The task occurred too far in advance. Mr. Ho’s entry

6 of 4/2/2015 is denied. His tasks were not specific to trial subpoenas, but for general trial

7 preparations. Ms. Garcia and Ms. Ponce engaged in two rounds of preparing trial

8 subpoenas: 14.6 hours for the first and 17.3 hours for the second (presumably due to the

9 Court’s re-setting of the May 11, 2015 trial date less than three weeks from trial).

10 Nonetheless, this seems excessive and was reduced by 15 hours, with 7.5 hours deducted

11 from each paralegal’s hours. Ms. Garcia’s reduced hours were then re-calculated at the

12 $150 rate found in Section II.C above. (Mini-Charts 12.) Mr. Ponce’s reduced hours,

13 however, were not re-calculated at the $150 rate. The average implicit hourly rate LAS used

14 for her in this project is below $150. (Dkt. 315-1, pg. 71, 122-23; Mini-Charts 12.)

15

D. Lodestar of Recoverable Fees

16

Adding up all the findings on reasonable fees for each recoverable project above

17 (excluding Project No. 87 for fees on fees), this report finds that the lodestar is

18 $1,395,656.12.

19 IV DOWNWARD ADJUSTMENT OF LODESTAR

20

The parties dispute whether the lodestar should be Plaintiff’s fee award or whether

21 the lodestar should be further reduced due to Plaintiff’s partial success in this action. With

22 SPB joining CDCR’s contentions, Defendants argue the lodestar should be reduced by fifty

23 percent (50%) because: (1) Plaintiff succeeded on only one out of ten claims pled at the

24 outset of this action; and (2) after prevailing on the sole Title VII claim, Plaintiff only

25 obtained limited relief. (CDCR Opp. 9-10, 12-13; SPB Opp. 4 n.1, 10-11.) Meanwhile,

26 Plaintiff contends his attorneys won this case unequivocally and got excellent results,

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1 justifying all claimed fees and no reduction of the presumptively reasonable lodestar. (Mot.

2 24.)

3

In Hensley, the Supreme Court set out a two-step analysis for any lodestar deduction

4 due to partial success, stating the factor of partial success “is particularly crucial where a

5 plaintiff is deemed ‘prevailing’ even though he succeeded only on some of his claims for

6 relief.” 461 U.S. at 434. In this situation, two questions must be addressed:

7

First, did the plaintiff fail to prevail on claims that were unrelated to the

claims on which he succeeded? Second, did the plaintiff achieve a level of

8

success that makes the hours reasonably expended a satisfactory basis for

making a fee award?

9

Id. at 434. The report examines both questions in turn. 10

A. Relatedness of Successful and Unsuccessful Claims 11

Where a plaintiff is partially successful in a lawsuit, he may not recover attorney’s 12

fees for work on unsuccessful claims that are “unrelated” to his successful ones—such work 13

“cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’” 14

Hensley, 461 U.S. at 435. Hensley observed “there is no certain method of determining 15

when claims are ‘related’ or ‘unrelated’” but it also indicated that claims are related if they 16

either “involve a common core of facts” or are “based on related legal theories.” Id. at 435, 17

437 n.12. The Ninth Circuit, having acknowledged that the Hensley test for relatedness “is 18

not precise,” Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 903 (9th Cir. 1995) 19

(quoting Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986)), has articulated 20

the relevant inquiry as “whether relief sought on the unsuccessful claim is intended to 21

remedy a course of conduct entirely distinct and separate from the course of conduct that 22

gave rise to the injury on which the relief is granted.” Thorne, 802 F.2d at 1141 (internal 23

quotation marks omitted); see also Schwarz, 73 F.3d at 903. The Ninth Circuit states a 24

district court must ask “whether the unsuccessful and successful claims arose out of the 25

same ‘course of conduct.’ If they didn’t[,] they are unrelated under Hensley.” Schwarz, 73 26

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1 F.3d at 903.

2

Here, for the reasons stated in Section III.B above, Plaintiff’s unsuccessful and

3 successful claims are related. Thus, this report moves onto the second step of the Hensley

4 analysis.

5

B. Overall Results Achieved

6

On step two of Hensley, this report must consider whether Plaintiff “achieve[d] a

7 level of success that makes the hours reasonably expended a satisfactory basis for making a

8 fee award.” 461 U.S. at 434. In answering this question, Hensley states the district court

9 “should focus on the significance of the overall relief obtained by the plaintiff in relation to

10 the hours reasonably expended on the litigation.” Id. at 435. “Where a plaintiff has

11 obtained excellent results, his attorney should recover a fully compensatory fee.” Id. at 435.

12 In the face of excellent results, “the fee award should not be reduced simply because the

13 plaintiff failed to prevail on every contention raised in the lawsuit.” Id. at 435. A plaintiff

14 may obtain excellent results without receiving all the relief requested. “For example, a

15 plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may

16 recover a fee award based on all hours reasonably expended if the relief obtained justified

17 that expenditure of attorney time.” Id. at 435.

18

“If, on the other hand, a plaintiff has achieved only partial or limited success, the

19 product of hours reasonably expended on the litigation as a whole times a reasonable hourly

20 rate may be an excessive amount.” Id. at 436. “We emphasize that the inquiry does not end

21 with a finding that the plaintiff obtained significant relief. A reduced fee award is

22 appropriate if the relief, however significant, is limited in comparison to the scope of the

23 litigation as a whole.” Hensley, 461 U.S. at 439-40. The Ninth Circuit has explained that

24 the “bulk of discretion retained by the district court lies” at step two of the Hensley inquiry,

25 which, at its core, asks whether a plaintiff’s accomplishments warrant the fee amount

26 requested. See Thomas v. City of Tacoma, 410 F.3d 644, 650 (9th Cir. 2005).

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1

This report finds that Plaintiff’s lawsuit achieved good—but not excellent—overall

2 results when viewed in relation to the 3,000+ hours claimed by LAS. Undisputedly, the

3 ambitious institutional reforms that Plaintiff and his counsel sought for Defendants’ state-

4 wide organizations were rejected by the Court. Plaintiff requested broad systemic injunctive

5 relief requiring Defendants to “institute written policies, procedures, practices, training, and

6 all other steps necessary to ensure that CDCR’s background investigation and selection

7 processes for the Correctional Officer position, and SPB’s handling of appeals from CDCR

8 decisions to withhold applicants, are consistent” with Title VII case law and EEOC

9 guidance. (Dkt. 268, Plaintiff’s Brief Summarizing Relief Requested 12.) Specifically,

10 Plaintiff asked for the following:

11

(1) that CDCR retain experts to review its hiring process to ensure that it is

properly validated; (2) modifications to CDCR’s “Discrepancy Notice”

12

form; (3) training for CDCR and SPB staff on the EEOC guidance; (4)

consideration of the alternative background investigation testing devices

13

plaintiff presented during trial; (5) that CDCR and SPB report to the Court

for five years, on a quarterly basis, the number of applicants rejected based

14

on use of an invalid SSN; and (6) that the Court retain jurisdiction of this

case for the purposes of monitoring and ensuring compliance in

15

perpetuity.

16 (Order re Relief 6-7.) Instead, what Plaintiff and his counsel achieved was good individual 17 relief tailored to CDCR’s and SPB’s unlawful discrimination toward him: (1) reinstatement 18 to where Plaintiff had progressed in the CDCR hiring process (2) rescission of the three 19 adverse CDCR and SPB decisions and (3) $140,362 in backpay, with CDCR and SPB 20 jointly and severally liable if Plaintiff completes the CDCR training academy. (Order re 21 Relief 2-4, 6.) Again, Plaintiff and LAS obtained no systemic change other than requiring 22 Defendants to follow the law. In this regard, Plaintiff’s lawsuit is distinguishable from 23 Soren v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001), which Plaintiff quotes to emphasize that 24 excellent results may be obtained without receiving all relief requested.4 (Mot. 25.) In 25 26 4 Plaintiff’s reliance on two other decisions for “excellent results” absent all requested relief
is misplaced. Plaintiff’s quote from Dang v. Cross, 422 F.3d 800 (9th Cir. 2005) is dicta.

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1 Soren, after the parties settled the class action, the district court awarded $989,431.08 in fees

2 from the plaintiffs’ request of $1,446,908 for 8,298.39 hours of work by lawyers and legal

3 staff. 239 F.3d at 1143-44. In light of the “excellent results,” the Ninth Circuit affirmed the

4 district court’s refusal to deduct the award for partial success. The district court found that

5 the plaintiffs had continuously litigated for eight years and accomplished their “mission” to

6 “bring about a common good”—namely the “improvement of the disability determination

7 system in Oregon.” Id. at 1147. The Soren plaintiffs obtained systemic relief against a

8 federal agency and three state agencies, but not all the relief they sought or all the program

9 changes they contemplated. Id. at 1143, 1147.

10

Similarly, Plaintiff’s lawsuit is unlike another, more recent decision on “excellent

11 results” achieved despite partial success. In Dowd v. City of Los Angeles, 28 F.Supp.3d

12 1019 (C.D. Cal. 2014), the plaintiffs sued Los Angeles via 42 U.S.C. § 1983, challenging as

13 unconstitutional under the First and Fourteenth Amendments two municipal ordinances that

14 regulated vending and expressive activities on the Venice Beach Boardwalk. 28 F.Supp.3d

15 at 1030-31. After a seven-day trial, the jury found for the plaintiffs, awarding nominal

16 damages totaling $10 despite their request for hundreds of thousands of dollars. Id. at 1029,

17

18 Dang did not decide whether the 10% partial-success reduction was reasonable in light of the plaintiff’s success. Instead, the Ninth Circuit reversed because the district court erred as

19 a matter of law. Latter failed to consider whether the unsuccessful claims against the

dismissed defendants and the losing defendant were related to the successful claim. Id. at

20 813. While better, Plaintiff’s reliance on Hamlin v. Charter Township of Flint, 165 F.3d

426, 438 (6th Cir. 1999), is not persuasive. The Sixth Circuit reversed and reinstated the fee 21 award without the district court’s 50% partial-success reduction. Id. at 438. Hamlin held

22 that the plaintiff’s recovery of half of damages sought was “not a proper basis” for reducing the fee award. Id. at 438. The Sixth Circuit held: “[t]he law does not require plaintiffs to

23 recover 100% of what they sue for in order to be considered successful at trial.” Id. at 438.

Significantly, the Hamlin plaintiff recovered $500,000 out of over $1M sought vis-à-vis his 24 total fee request of $105,645 for about 603.68 hours at $175 per hour. Id. at 436, 438. Here,

25

the comparison between Plaintiff’s overall success and his $1.6M fee request for 3,000+ hours is less favorable. See Hensley, 461 U.S. 424, 435 (stating the district court “should

26 focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation”)

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1 1034. The trial court found the plaintiffs were entitled to attorney’s fees and awarded

2 $601,902.50 from the plaintiffs’ request for $995,042.32. Id. at 1033, 1060. Despite

3 succeeding on two out of five related claims, the trial court refused to reduce the lodestar for

4 limited success. Id. at 1060-62. It found the plaintiffs had achieved “excellent results”

5 because they “effected a meaningful change in policy to the extent the Court declared the

6 amplified sound ban unconstitutional. . . Going forward, Plaintiffs, similarly situated street

7 performers and the public at large will reap the benefits of Plaintiffs’ victory.” Id. at 1063.

8 Next, the trial court found that the plaintiffs’ successful as-applied challenge achieved an

9 important public purpose vis-à-vis the Rules on Decorum on how the City Council manages

10 public comments at its meetings. “As a result of this litigation, the City will likely

11 reevaluate how it conducts City Council meetings, in turn making it less likely that

12 individuals partaking in public comment sessions will be wrongfully removed and

13 suspended from meetings for engaging in protected political speech.” Id. at 1063.

14

Here, the individual relief that Plaintiff obtained is dissimilar in form and impact

15 from the systemic relief achieved in Soren and the meaningful public policy change secured

16 in Dowd, both of which were found to be “excellent results” that concretely benefited the

17 general public. Plaintiff obtained good individual relief, but did not secure broad systemic

18 injunctive relief. And, according to Defendants, “Plaintiff failed to achieve the principle

19 goal underlying his case: to prove that a government agency cannot consider SSN misuse by

20 formerly undocumented immigrants as a negative factor in hiring.” (CDCR Opp. 12; see

21 also TAC Prayer for Relief ¶¶ 2-3, 6.) The Court found that CDCR’s Question 75 serves a

22 legitimate purpose, because “[p]rior use of an invalid SSN by itself is rationally probative”

23 to the job-related “important character traits” of “honesty, integrity, and good judgment.”

24 (FFCL 23.)

25

Due to the good, but mixed overall results, and in light of the 3,000+ hours LAS

26 claimed, this report recommends an across-the-board reduction of fifteen percent (15%)

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1 to Plaintiff’s lodestar. Where, as here, a plaintiff has achieved partial success, Hensley

2 permits the district court to exercise discretion in applying a reasonable downward

3 adjustment in the lodestar by either “identifying specific hours that should be eliminated, or

4 [by] simply reducing the award to account for the limited success.” Hensley, 461 U.S. at

5 436-37.

6

Reaching a fair and appropriate percentage for the lodestar reduction here was tricky.

7 This report believes 15% is reasonable, despite the undersigned not finding case law directly

8 on point with our situation: single plaintiff prevailed against all defendants on his core Title

9 VII disparate impact claim with related unsuccessful claims, securing good individual

10 equitable relief, but not any broad injunction requiring systemic reforms of the two

11 institutional defendants. In the case law, district courts confronted with a defendant’s

12 request for a partial-success reduction have used a mix of considerations primarily revolving

13 around the number of defendants, claims and relief initially sued upon versus the win-loss

14 tally on the defendants, claims and relief remaining when the plaintiff ultimately prevailed.

15

Two decisions helped calibrate the 15% reduction here. In Farina v. Ciccone Food

16 Products, Inc., 2005 U.S. Dist. LEXIS 34098 (N.D. Ill. Dec. 15, 2005), the plaintiffs won

17 their Title VII claim on hostile work environment but lost their gender discrimination claim

18 after a jury trial. Id. at *1-2. The plaintiffs received monetary awards of $35,000 out of

19 millions of dollars sought. Id. at *14. After declining to grant an injunction requiring

20 company-wide reforms, the district court reduced the $256,185 lodestar by 34.3% for partial

21 success under Hensley. Id. at *3-5, 11, 14. Similarly, in Jackie Robinson v. City of New

22 York, 2009 U.S. Dist. LEXIS 89981 *30 (S.D.N.Y. Sept. 29, 2009), the defendants

23 requested a partial-success reduction of at least 50% because the plaintiffs’ success was

24 minimal when compared to the relief sought. There, the plaintiffs sued under Title VII and

25 42 U.S.C. §1983, alleging race discrimination and retaliation by employer police department

26 and supervisors that caused nine plaintiff police officers to suffer from less favorable

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1 evaluations and the denial of voluntary overtime, paid detail assignments, favorable posts,

2 etc. Id. at *2-3. After a 14-day trial, the jury awarded damages ranging from $15,000 to

3 $60,000 as to seven of nine plaintiffs (for total damages of $235,000). Id. at *9, 30, 32. The

4 district court also granted an injunction consistent with the jury’s verdict. Id. at *9. The

5 plaintiffs requested $1,226,041.10 in attorney’s fees. Id. at *5. The district court reduced

6 the lodestar by 25%. Id. at *34. It found that:

7

While plaintiffs’ claims arise out of a common core of facts, plaintiffs

succeeded on only one of their many claims -- and then succeeded only in

8

part. The jury awarded plaintiffs compensatory damages in the amount of

$ 235,000 for discrete events of retaliation on the part of a single superior

9

lasting less than a year -- not the several millions in compensatory and

punitive damages the plaintiffs sought for violations allegedly committed

10

by five named defendants and half a dozen other commanders, stretching

from 2003 until the date of trial.

11

Id. at *31-32. Here, this report landed on a 15% reduction because Plaintiff achieved better 12

overall success on his core Title VII claim than the Farina or Robinson plaintiffs, without 13

ever seeking millions of dollars in damages. Cf. Moreno v. City of Sacramento, 534 F.3d 14

1106, 1112 (9th Cir. 2008) (“Nevertheless, the district court can impose a small reduction, 15

no greater than 10 percent—a ‘haircut’—based on its exercise of discretion and without a 16

more specific explanation.”). Moreover, Plaintiff got make-whole equitable relief (but not 17

broad systemic reforms) for the core Title VII disparate impact claim that his counsel LAS 18

spent much time and energy to advance with voluminous fact discovery and six experts 19

testifying at trial. 20

This report rejects Defendants’ request for a 50% reduction of the lodestar. Fifty 21

percent is too steep. In urging for the 50% reduction, Defendants rely on two decisions. 22

Both are distinguishable. In Harris v. County of San Bernardino, 24 F.3d 16, 17 (9th Cir. 23

1994), the plaintiff sought $ 5 million in damages under 42 U.S.C. § 1983 from six 24

defendants (law enforcement officers and the county employing them) for violation of his 25

constitutional rights from an alleged beating the plaintiff sustained during a traffic stop. 26

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1 Following two jury trials, the plaintiff obtained $25,000 in damages against one defendant,

2 Brian Alvarez, a deputy sheriff. Id. at 17-18. The plaintiff sought attorney’s fees and costs

3 totaling $120,819.40. Id. at 18. The Ninth Circuit affirmed the district court’s 50% lodestar

4 reduction due to partial success. It found persuasive “the amount of damages recovered

5 versus the amount sought, and the number of claims prevailed upon versus the number of

6 claims dismissed or decided in defendant’s favor.” Id. at 18-19. Here, Plaintiff achieved

7 better success than the Harris plaintiff. Mr. Guerrero prevailed against all Defendants.

8 Additionally, he obtained make-whole equitable relief in the form of reinstatement,

9 rescission of adverse job rejections and $140,362 in backpay. As Defendants did not raise

10 this, Plaintiff’s waiver of unspecified damages for emotional distress is not an issue. Again,

11 Plaintiff did not seek multi-millions in damages.

12

Similarly, Defendants’ reliance on Navarro v. General Nutrition Corp., 2005 U.S.

13 Dist. LEXIS 39726 (N.D. Cal. Sept. 22, 2005) (Armstrong, J.), is misplaced. In Navarro,

14 the plaintiff sued her former employer and supervisor, alleging six federal and state claims

15 ranging from wrongful termination, discrimination, retaliation, unfair competition and

16 violation of medical leave laws. Id. at *4-5. After trial, the jury found in favor of the

17 plaintiff on her Family Medical Leave Act interference claim against only the former

18 employer and awarded $60,500 in damages. Id. at *11. The plaintiff requested $687,647.87

19 in attorney’s fees. Id. at *12. The district court made a 40% lodestar reduction due to

20 “quite limited” success. Id. at *51, 54. It was persuaded by: (1) the lack of success on three

21 related claims, (2) the $665,500 sought versus the $60,500 in back pay awarded, (3) lack of

22 recovery on front pay, emotional distress and punitive damages and (4) lack of reinstatement

23 or other injunctive relief. Id. at *51-52. It was also persuaded by the unnecessarily

24 extended proceedings. Id. at *53. For the reasons stated in discussing Harris above,

25 Plaintiff’s success here is not as limited as the plaintiff’s result in Navarro. Moreover, LAS

26 brought Plaintiff’s disparate impact and constitutional claims to trial in eighteen months.

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1

In sum, this report finds that Plaintiff’s lawsuit achieved good—but not excellent—

2 overall results. Plaintiff won on the core Title VII disparate impact claim, but lost on his

3 federal constitutional claims. Plaintiff obtained make-whole equitable relief, but not broad

4 systemic reforms of CDCR and SPB. In light of this partial success, this report finds a

5 fifteen percent (15%) reduction of the $1,395,656.12 lodestar is reasonable and

6 appropriate. Thus, this report recommends awarding Plaintiff reasonable attorney’s fees in

7 the amount of $1,186,307.70 (exclusive of fees on fees).

8 V BILL OF COSTS AND LITIGATION EXPENSES

9

Under Title VII, a prevailing plaintiff is entitled to recover both her statutory costs

10 and reasonable non-statutory litigation expenses incurred by her attorneys. See, e.g., Davis,

11 976 F.2d at 1556 (concluding that “attorneys’ fees awards can include reimbursement for

12 out-of-pocket expenses” since they are “typically charged to paying clients by private

13 attorneys”), opinion vacated in part on denial of reh'g, 984 F.2d 345 (9th Cir. 1993). These

14 non-statutory litigation expenses include expert witness fees. 42 U.S.C. § 2000e-5(k)

15 (district court, in its discretion, “may allow the prevailing party . . . a reasonable attorney’s

16 fee (including expert fees) as part of the costs . . . .”)

17

A. Bill of Costs

18

Concurrently with this fee application, Plaintiff filed his Bill of Costs documenting

19 $22,469.61 in statutory costs. (Dkt. 295.) Neither CDCR nor SPB objected to the Bill of

20 Costs. The Clerk of Court has taxed $20,569.01 against CDCR and SPB. (Dkt. 314.)

21

B. Litigation Expenses

22

Plaintiff also requests reimbursement for non-statutory litigation expenses totaling

23 $145,972.86. (Ho Decl. ¶ 66.) Plaintiff’s lead counsel, Mr. Ho, declares under penalty of

24 perjury that all expenses were documented within a system for contemporaneous record-

25 keeping as expenses were incurred, and such expenses were incurred by LAS and its legal

26 staff as part of this litigation to enforce Mr. Guerrero’s rights. (Ho Decl. ¶ 47.) Plaintiff’s

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1 request details the specific expenses in a computer-generated printout reflecting case

2 expenditures and attaches copies of invoices or receipts organized by category of expense

3 and chronologically. (Dkt. 301, Exh. D; Ho Decl. ¶¶ 66-72.) Mr. Ho states he reviewed

4 Exhibit D, and it accurately reflects expenditures made by LAS as part of the litigation of

5 this case. (Ho Decl. ¶ 47; Dkt. 301, Exh. D.)

6

Except for one broad objection (addressed below), Defendants have not disputed any

7 of Plaintiff’s non-statutory litigation expenses. Defendants have neither objected to any

8 category of expense (e.g., travel, e-discovery, expert fees, etc.) as non-recoverable nor

9 objected to any particular invoice or receipt. Defendants have not objected to any of

10 Plaintiff’s litigation expenses as unrecoverable, unnecessary, unreasonable, excessive or

11 duplicative.

12

This report recommends granting Plaintiff’s request for $145,972.86 in non-statutory

13 litigation expenses. The claimed litigation expenses are reasonable. Notably, expert witness

14 fees amounted to $106,814.80. (Dkt. 301, Exh. D pg. 4.) Exhibit D is a handy summary

15 table breaking down the expenses by category with subtotals and itemized descriptions

16 listing specific amounts. (Dkt. 301.) This report finds that the claimed expenses are the

17 type of expenses typically billed to fee-paying clients by private practice attorneys in San

18 Francisco. (Lee Decl. ¶ 18.)

19

SPB generally objects to Plaintiff’s statutory costs and non-statutory litigation

20 expenses. It argues: “because Plaintiff’s unsuccessful due process claim was unrelated to

21 his Title VII claim against SPB, any award of attorneys’ fees, expenses, and costs should be

22 reduced to reflect his partial success.” (SPB Opp. 10.) As discussed in Section III.B above,

23 the unsuccessful due process claim against SPB is related to Plaintiff’s successful Title VII

24 claim. SPB, moreover, has cited no authority for the proposition that the lodestar reduction

25 for partial success under Hensley also applies to statutory costs and litigation expenses

26 recoverable under Title VII.

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1 VI FEES ON FEES

2

Plaintiff is entitled to reasonable attorney’s fees for work on his fee application.

3 Davis, 976 F.2d at 1544; D'Emanuele v. Montgomery Ward & Co., 904 F.2d 1379, 1387-

4 1388 (9th Cir. 1990).

5

LAS states Project No. 87 on the fee application involved researching, reviewing

6 time and expense records, drafting the motion for attorney’s fees and reviewing Defendants’

7 oppositions. LAS billed 69.6 hours for $52,153.60, while its co-counsel Mr. Pearl billed

8 19.25 hours for $14,918.75. (Dkt. 315-14, pg. 2.) Thus, the requested fees on fees is

9 $67,072.35. Defendants lodged no objections.

10

The report makes a $16,355.23 reduction and finds $50,717.12 is reasonable. First,

11 Mr. Ho’s entries of 9/30/2015 and 10/2/2015 are denied for vagueness. Both are on

12 discussions without identifying with whom. Next, the subtotal of $66,733.05 is multiplied 13 by 76%. This is the percentage of merits fees ultimately recovered.5 See, e.g., Schwarz, 73

14 F.3d at 909 (upholding application of merits fees recovery percentage to determine

15 appropriate fees-on-fees award). For the reasons stated in Section VII.A below, this report

16 recommends apportioning liability for reasonable fees on fees so that CDCR is liable for

17 eighty percent (80%) and SPB is liable for twenty percent (20%).

18 VII APPORTIONMENT AND STAY

19

A. Apportionment of Any Award

20

Where the conduct of one defendant “was the focus of the litigation and required a

21 larger portion of the time of plaintiff’s counsel, it is appropriate to allocate the burden of the

22 fee award accordingly.” Sable Commc’ns of California Inc. v. Pac. Tel. & Tel. Co., 890

23 F.2d 184, 194 (9th Cir. 1989); see also Corder v. Gates, 947 F.2d 374, 382 (9th Cir. 1991)

24 5 The percentage of merits fees ultimately recovered was calculated as follows:
25 $1,606,857.40 (total claimed LAS fees, without claimed fees for Mr. Pearl) minus 26 $52,153.60 (claimed LAS fees on the fee motion) equals $1,554,703.80; $1,186,307.70
(adjusted lodestar) divided by $1,554,703.80 equals 0.7630 for 76%.

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1 (“the party that is the focus of the litigation should ordinarily bear the bulk of the litigation’s

2 costs.”) In making such an allocation, the district court “also should take account of the

3 extent of defendants’ culpability.” Sable, 890 F.2d at 194 (citations omitted.) However, the

4 key on whether apportionment between defendants is proper and, then, allocating the fee

5 liability amongst them is “the time expended by the plaintiff in pursuing each defendant.”

6 Corder, 947 F.2d at 382 (emphasis in original). After summarizing its prior decisions on

7 apportionment, The Ninth Circuit in Corder held:

8

Thus, since the total amount of attorney’s fee liability faced by any group

of defendants is based on the number of hours that the plaintiff reasonably

9

expended against them, the defendants’ rights inter se should share this

feature. And under Adams, Sable, and Woods, the defendants' rights inter

10

se do share this feature.

11 Id. at 382-83.

12

Pointing to CDCR as the main focus of this litigation, SPB argues that any award of

13 attorney’s fees, costs and expenses should be apportioned so that at least 90%, if not 100%,

14 of the award is borne by CDCR. (SPB Opp. 12.) SPB advanced this position in its first

15 opposition to the fee motion. Both CDCR and Plaintiff had the opportunity to respond on

16 the second round of submissions. Neither CDCR nor Plaintiff has lodged any objection.

17

The report rejects SPB’s view that CDCR shoulder 90% or 100% of any award. In

18 positing these bald percentages, SPB has not cited to any LAS billing records, much less

19 billing records showing that 90% of reasonable hours was devoted to CDCR. (SPB Opp.

20 11-12.) This report, however, recognizes that SPB advanced its position before LAS filed

21 its supplemental declaration. This was the first time LAS filed re-organized billings records

22 divided on a project-by-project basis. This was crucial to feasibly determine how LAS

23 allocated large portions of its time to either CDCR, SPB or both.

24

This report finds it is proper to apportion Defendants’ liability for any award to

25 Plaintiff of reasonable attorney’s fees and fees on fees. This report recommends allocating

26 the burden so that CDCR is liable for eighty percent (80%) and SPB is liable for twenty

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1 percent (20%). The 80/20 split was determined using a multi-step method based on the

2 project-by-project breakdown of reasonable fees for each recoverable project (see Section

3 III.C above). First, each recoverable project was divided into three categories based on 4 subject matter: (1) CDCR6, (2) SPB7 and (3) Mixed.8 The majority of projects under

5 categories (1) and (2) were dispositive motions, written discovery and depositions.

6

Second, the reasonable fees from specific projects within each category were added.

7 For CDCR Projects, the amount is $480,633.15. For SPB Projects, the amount is

8 $109,366.20. For Mixed Projects, the amount is $805,656.77.

9

Third, the 80/20 split was determined as follows: $480,633.15 plus $109,366.20

10 equals $589,999.35; $480,633.15 divided by $589,999.35 equals the CDCR percentage

11 rounded to 80%; and $109,366.20 divided by $589,999.35 equals the SPB percentage

12 rounded to 20%. Here, the total amounts on defendant-specific fees are a valid and good

13 proxy for the number of reasonable hours expended by LAS on each defendant throughout

14 this litigation. Both CDCR and SPB were sued together in the initial complaint, and both

15 remained for the bench trial. While not perfect or the most precise, this method of

16 apportionment is reasonable, fair and based on quantitative data.

17

This report declines to apportion the Bill of Costs or the litigation expenses. SPB

18 has proffered no authority for this approach.

19

B. Stay of Any Award

20

With SPB joining CDCR’s contentions, Defendants argue the Court should stay any

21 award of fees, costs and expenses until after all appeals have been exhausted in this case.

22 CDCR advanced this position in its first opposition to the fee motion. Plaintiff had the

23 6 CDCR Projects are: 12, 14, 20, 25, 27, 29, 31, 33, 34, 35, 36, 39, 40, 41, 42, 43, 49, 50, 51,
24 52, 55, 57, 67, 89. 7 SPB Projects are: 11, 13, 15, 21, 26, 28, 30, 44, 45, 46, 47, 56, 58, 91.
25 8 Mixed Projects are: 1, 2, 3, 5, 6, 7, 8, 9, 10, 16, 18, 19, 22, 23, 24, 37, 38, 48, 53, 54, 59,
26 60, 61, 62, 63, 64, 65, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 92, 95.

REPORT AND RECOMMENDATION

72

Case No. 13-cv-05671 WHA

Case 3:13-cv-05671-WHA Document 360-1 Filed 06/16/16 Page 73 of 73

1 opportunity to respond on the second round of submissions. Plaintiff has not lodged any

2 objections. This report recommends staying any award of reasonable attorney’s fees, costs

3 and expenses until after all appeals have been exhausted.

4

CONCLUSION

5

Based on the foregoing, this report finds and recommends that the Court award to

6 Plaintiff the following:

7

(1) reasonable attorney’s fees of $1,186,307.70;

8

(2) statutory costs of $20,569.01;

9

(3) non-statutory litigation expenses of $145,972.86; and

10

(4) fees on fees of $50,717.12.

11 The report also recommends apportioning the total fee award of $1,237,024.82 so that

12 CDCR is liable for eighty percent (80%) and SPB is liable for twenty percent (20%).

13 This results in $989,619.86 for CDCR and $247,404.96 for SPB. As for special master fees

14 on this matter, the undersigned will submit hours billed and a proposal for expense

15 allocation by May 4, 2016.

16

17 Dated: April 29, 2016

18

_/s/_______________________

19

CHRISTINA CHEN

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

73

Case No. 13-cv-05671 WHA

 
 CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee11oof f1100

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
JUL 12 2017

VICTOR GUERRERO, Plaintiff-Appellee,
v.

Nos. 15-17001 16-16096

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

D.C. No. 3:13-cv-05671-WHA

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; JEFFREY A. BEARD, Secretary of the California Department of Corrections and Rehabilitation; K. CARROLL, Lieutenant; D. SHARP, Sergeant; C. HESTER, Lieutenant; V. MAYOL, Lieutenant; S. COX, Lieutenant; V. MYERS, Sergeant,

MEMORANDUM*

Defendants-Appellants,

and

CALIFORNIA STATE PERSONNEL BOARD; SUZANNE M. AMBROSE, Executive Officer of State Personnel Board; BARBARA LEASHORE, Hearing Officer,

Defendants.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee22oof f1100

VICTOR GUERRERO,
Plaintiff-Appellee,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; JEFFREY A. BEARD, Secretary of the California Department of Corrections and rehabilitation; K. CARROLL, Lieutenant; D. SHARP, Sergeant; C. HESTER, Lieutenant; V. MAYOL, Lieutenant; S. COX, Lieutenant; V. MYERS, Sergeant,
Defendants,
and
CALIFORNIA STATE PERSONNEL BOARD; SUZANNE M. AMBROSE, Executive Officer of State Personnel Board; BARBARA LEASHORE, Hearing Officer,
Defendants-Appellants.

No. 15-17043 D.C. No. 3:13-cv-05671-WHA

VICTOR GUERRERO, Plaintiff-Appellee,
v. CALIFORNIA STATE PERSONNEL

No. 16-16098 D.C. No. 3:13-cv-05671-WHA

2

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee33oof f1100
BOARD; SUZANNE M. AMBROSE, Executive Officer of State Personnel Board; BARBARA LEASHORE, Hearing Officer,
Defendants-Appellants,
and
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; JEFFREY A. BEARD, Secretary of the California Department of Corrections and Rehabilitation; K. CARROLL, Lieutenant; D. SHARP, Sergeant; C. HESTER, Lieutenant; V. MAYOL, Lieutenant; S. COX, Lieutenant; V. MYERS, Sergeant,
Defendants.
Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted May 16, 2017 San Francisco, California
Before: THOMAS, Chief Judge, WARDLAW, Circuit Judge, and MORRIS,** District Judge.
** The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation.
3

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee44oof f1100
The California Department of Corrections and Rehabilitation (“CDCR”) and the California State Personnel Board (“the Personnel Board”) appeal the district court’s judgment entered after a bench trial. We affirm in part and reverse in part. Because the parties are familiar with the history of this case, we need not recount it here.
I A We review the district court’s findings of fact concerning a claim of disparate impact for clear error. Paige v. California, 291 F.3d 1141, 1144 n.3 (9th Cir. 2002). “In particular, we give deference to a district court’s findings regarding statistical evidence.” Id. The district court’s findings in this case were not clearly erroneous. The general facts were undisputed. All applicants whose applications were withheld on the basis of the one question at issue were Latino. The district court was entitled to credit Guerrero’s statistical expert who testified that the expected percentage of Latinos adversely affected was 42.1%. The district court also found that CDCR’s statistical expert had conceded that even if two of the seven applicants had their applications withheld in part due to the question, then the question had a statistically adverse affect on Latinos. The record supports the district court’s conclusion that the question was the deciding factor for at least two
4

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee55oof f1100
of the seven relevant applicants. Under our deferential standard of review, the district court’s findings were not clearly erroneous.
Given those factual findings, the district court did not err in concluding that Guerrero had established a prima facie case of disparate impact in CDCR’s employment selection, a decision we review de novo. Id. Under the Equal Employment Opportunity Commission’s four-fifths rule, a selection practice is considered to have a disparate impact if it has a “selection rate for any race, sex, or ethnic group which is less than four-fifths . . . (or eighty percent) of the rate for the group with the highest rate.” 29 C.F.R. § 1607.4(D) (2001). Applying the EEOC rule to the district court’s factual findings, the district court properly concluded that Guerrero had established a prima facie case of disparate impact in its employment selection practices.
B If the plaintiff establishes a prima facie case of disparate impact, then the employer may invoke a “business necessity” defense, which permits “hiring criteria with a ‘manifest relationship’ to job performance.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, 135 S. Ct. 2507, 2517 (2015) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)). To successfully establish a business necessity defense, an employer must prove that “the
5

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee66oof f1100
challenged selection device or criteria and the important elements of the job or training program” have a “significant relation” between them, “not merely some ‘rational basis’ for the challenged practice.” Contreras v. City of L.A., 656 F.2d 1267, 1276 (9th Cir. 1981) (quoting Craig v. Cty. of L.A., 626 F.2d 659, 664 (9th Cir. 1980)). The CDCR argues that the question was an important screening tool, and that it individually assesses and interviews every applicant, not just those it rejects at screening. However, the district court found that “there is no evidence that CDCR paid anything more than lip service to Guerrero’s circumstances under the EEOC factors.” The court further found that CDCR did not actually engage in an individualized assessment of Guerrero and at least three other Latino candidates, and likely misunderstood the answer to the question. These findings are supported by the record and are not clearly erroneous.
C CDCR further argues that, overall, it has an excellent record in hiring Latinos and, therefore, it cannot be held liable under a disparate impact theory. However, the Supreme Court has rejected the so-called “‘bottom-line’ theory of defense,” holding that even “if the ‘bottom-line’ result of the promotional process was an appropriate racial balance,” that result will “not preclude . . . employees from establishing a prima facie case, nor does it provide [the] employer with a
6

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee77oof f1100
defense to such a case.” Connecticut v. Teal, 457 U.S. 440, 442 (1982). It explained that Title VII “speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities.” Id. at 448 (emphases in original). “A disparate-impact claim reflects . . . Congress’ basic objectives . . . to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” Id. (emphasis in original).
We applied Teal in Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002), where female postal inspectors directed their disparate impact claim at an intermediate screening stage in a promotions process. Id. at 1121. Echoing Teal, we explained that the “nonadverse results of the ultimate promotion decisions cannot refute a prima facie case of disparate impact at the dispositive interview selection stage.” Id. at 1122. Therefore, it was appropriate to “separate the results of the interview selection stage from the results of the overall promotion process because the intermediate stage functioned as a pass or fail barrier to further consideration for promotion.” Id.
7

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee88oof f1100
CDCR’s theory that it cannot be held liable for disparate impact because of its “bottom line” excellent record of hiring Latinos is precluded by binding Supreme Court and Ninth Circuit precedent.
II The district court did not abuse its discretion when it denied CDCR the opportunity to pursue further investigation of Guerrero. See Chance v. Pac-Tel Teletrac, Inc., 242 F.3d 1151, 1161 (9th Cir. 2001) (no abuse of discretion where district court denied additional time to conduct discovery). In order to “rely upon after-acquired evidence of wrongdoing, [an employer] must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362–63 (1995). Here, CDCR merely hoped that a further investigation would produce additional evidence of wrongdoing that might justify its initial decision not to hire Guerrero, and the district court actually permitted CDCR to complete its background check to the extent it was unfinished. “A district court is vested with broad discretion to permit or deny discovery, and a decision ‘to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery results in actual and substantial prejudice to
8

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee99oof f1100
the complaining litigant.’” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). Under these circumstances, the district court did not abuse its wide discretion in managing discovery.
III The district court erred in imposing liability on the Personnel Board. The Personnel Board did not participate in the hiring decision, nor did it participate in the formulation of the question at issue. It reviewed the case only administratively. “A direct employment relationship is not a prerequisite to Title VII liability.” Ass’n of Mex.-Am. Educators v. California, 231 F.3d 572, 580 (9th Cir. 2000) (en banc) (AMAE). It is possible for Title VII liability to extend to a third party entity if that entity “interferes with an individual’s employment opportunities with another employer.” Id. (quoting Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir. 1983) (per curiam)). However, Title VII liability is extended to indirect employers only if they “discriminated against and interfered with the employees’ relationship with their employers.” Anderson v. Pac. Mar. Ass’n, 336 F.3d 924, 931 (9th Cir. 2003). The Personnel Board is a “statewide administrative agency which is created by, and derives its adjudicatory power from, the state Constitution.” Dep’t of Parks & Recreation v. State Pers. Bd., 284 Cal. Rptr. 839, 844 (Cal. App. Ct.
9

CCaassee:31:153-1-c7v0-015,60771/-1W2H/2A017D, oIDcu: m10e5n0t5367304, FDikletEdn0t8ry/0: 41/0107-1,PPaaggee1100oof f1100
1991). It is “empowered to ‘review disciplinary actions’” and in so doing, “acts in an adjudicatory capacity.” Id. (quoting Kristal v. Cal. State Pers. Bd., 123 Cal. Rptr. 512, 516 (Cal. App. Ct. 1975)). In its purely adjudicatory role in this case, there is no evidence that it discriminated against or interfered with the CDCR’s relationship with Guerrero, nor is the Personnel Board in a position analogous to California in AMAE, where the state was “so entangled with the operation of California’s local school districts that individual districts are treated as ‘state agencies’ for purposes of the Eleventh Amendment.” AMAE, 231 F.3d at 582. Therefore, the Personnel Board cannot be liable under a third party disparate impact theory.
IV Because the attorney fee award was based, in part, on the fact that the judgment was entered against all defendants, we must vacate the award and remand for the district court to reassess in light of our reversal of the judgment against the Personnel Board.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.1 Each party shall bear its own costs.
1 The motion for judicial notice is denied. 10

 
 Case 3:13-cv-05671-WHA Document 400 Filed 12/09/17 Page 1 of 1

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 VICTOR GUERRERO,

11

Plaintiff,

No. C 13-05671 WHA

12 v.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION;
14 STATE PERSONNEL BOARD,

MODIFIED JUDGMENT

15

Defendants.

/

16

17

For the reasons set forth in the decision of our court of appeals (Dkt. No. 370), judgment

18 is hereby modified. Judgment is entered in favor of defendant State Personnel Board, and

19 against plaintiff Victor Guerrero. The previous judgment in favor of Guerrero and against

20 defendant California Department of Corrections and Rehabilitation remains undisturbed.

21

22

IT IS SO ORDERED.

23

24 Dated: December 9, 2017. 25

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

26

27

28

 
 Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 1 of 37
ADRMOP,CLOSED,PROTO,REFSET−DMR
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:13−cv−05671−WHA

Guerrero v. California Department of Corrections & Rehabilitation et al Assigned to: Hon. William Alsup Referred to: Magistrate Judge Donna M. Ryu (Settlement) Case in other court: ,
,
16−16096
16−16098 Cause: 28:451 Employment Discrimination
Special Master

Date Filed: 12/09/2013 Date Terminated: 09/28/2015 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Matthew Borden TERMINATED: 02/10/2016

represented by Matthew Brooks Borden BraunHagey & Borden LLP 220 Sansome Street, 2nd Floor San Francisco, CA 94104 415−599−0212 Fax: 415−276−1808 Email: borden@braunhagey.com LEAD ATTORNEY

Special Master Christina Pei−Lin Chen

represented by Christina Pei−Lin Chen 2705 Webster Street Unit 5141 Berkeley, CA 94705 415−999−3858 Email: cpc15@cornell.edu ATTORNEY TO BE NOTICED

Plaintiff Victor Guerrero

represented by Christopher Ho Legal Aid at Work 180 Montgomery Street Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096 Email: cho@legalaidatwork.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha Jade Chien Legal Aid Society−Employment Law Center 180 Montgomery Street Suite 600 San Francisco, CA 94104 United Sta 415−864−8848 Email: marshac@atg.wa.gov TERMINATED: 08/06/2015 LEAD ATTORNEY

Richard Morse Pearl Law Offices of Richard M. Pearl 1816 5th St Berkeley, CA 94710

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 2 of 37
510/649−0810 Email: rpearl@interx.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Cristina Diaz Legal Aid Society−Employment Law Center 180 Montgomery Street, Suite 600 San Francisco, CA 94104 (415) 864−8848 Email: mdiaz@legalaidatwork.org ATTORNEY TO BE NOTICED
Stacy Villalobos Legal Aid at Work 180 Montgomery Street Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096 Email: svillalobos@legalaidatwork.org TERMINATED: 09/15/2017

V.
Defendant
California Department of Corrections and Rehabilitation

represented by Fiel Dizon Tigno Attorney General for the State of Calif 1515 Clay Street, 20th Floor P. O. Box 70550 Oakland, Ca 94612−0550 (510) 622−2204 Email: fiel.tigno@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miguel Angel Neri Office of the Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612−0550 (510) 879−0755 Fax: (510) 622−2270 Email: Miguel.Neri@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Michael Young Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5553 Fax: 415−703−5843 Email: chris.young@doj.ca.gov ATTORNEY TO BE NOTICED
Jorge Aguilar , II California Department of Justice CIVIL/EAM 1515 Clay Street 20th Floor PO Box 70550 Oakland, CA 94612

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 3 of 37

(510) 879−0001 Fax: (510) 622−2121 Email: Jorge.aguilar@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant State Personnel Board

represented by Dorothy Irene Bacskai Egel California State Personnel Board 801 Capitol Mall Sacramento, CA 95814 (916) 653−1403 Email: Dorothy.Egel@spb.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alvin Gittisriboongul 801 Capitol Mall Sacramento, CA 95814 916−653−1403 Email: alvin.gittisriboongul@spb.ca.gov ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jeffrey Beard Secretary of the California Department of Corrections and rehabilitation

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address) ATTORNEY TO BE NOTICED

Defendant
Suzanne Ambrose Executive Officer of State Personnel Board

represented by Dorothy Irene Bacskai Egel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alvin Gittisriboongul (See above for address) ATTORNEY TO BE NOTICED

Defendant Lieutenant K Carroll

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 4 of 37

ATTORNEY TO BE NOTICED

Defendant Sergeant D Sharp

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address) ATTORNEY TO BE NOTICED

Defendant
Barbara Leashore Hearing Officer

represented by Dorothy Irene Bacskai Egel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alvin Gittisriboongul (See above for address) ATTORNEY TO BE NOTICED

Defendant Lieutenant C Hester

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address) ATTORNEY TO BE NOTICED

Defendant Lieutenant V Mayol

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address) ATTORNEY TO BE NOTICED

Defendant Lieutenant S Cox

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 5 of 37

ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address) ATTORNEY TO BE NOTICED

Defendant Sergeant V Myers

represented by Miguel Angel Neri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michael Young (See above for address) ATTORNEY TO BE NOTICED

Fiel Dizon Tigno (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/09/2013
12/09/2013 12/09/2013
12/10/2013 12/10/2013 12/10/2013 12/19/2013 12/27/2013 12/27/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−8215131.), PETITION for Writ of Mandamus (Filing fee $350 receipt number 0971−8215131), PETITION against All Defendants (Filing fee $400 receipt number 0971−8215131). Filed byVictor Guerrero. (Attachments: # 1 Civil Cover Sheet)(Chien, Marsha) (Filed on 12/9/2013) (Entered: 12/09/2013)
2 Certificate of Interested Entities by Victor Guerrero (Chien, Marsha) (Filed on 12/9/2013) (Entered: 12/09/2013)
3 Case assigned to Magistrate Judge Nathanael M. Cousins.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (cjl, COURT STAFF) (Filed on 12/9/2013) (Entered: 12/09/2013)
4 ADR SCHEDULING ORDER: Case Management Statement due by 3/5/2014. Case Management Conference set for 3/12/2014 10:00 AM in Courtroom A, 15th Floor, San Francisco. (dtmS, COURT STAFF) (Filed on 12/10/2013) (Entered: 12/10/2013)
5 Proposed Summons. (Ho, Christopher) (Filed on 12/10/2013) (Entered: 12/10/2013)
6 Summons Issued as to California Department of Corrections and Rehabilitation, State Personnel Board. (dtmS, COURT STAFF) (Filed on 12/10/2013) (Entered: 12/11/2013)
7 CERTIFICATE OF SERVICE by Victor Guerrero on CDCR and SPB (Chien, Marsha) (Filed on 12/19/2013) (Entered: 12/19/2013)
8 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by California Department of Corrections and Rehabilitation.. (Tigno, Fiel) (Filed on 12/27/2013) (Entered: 12/27/2013)
9 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge. (lmh, COURT STAFF) (Filed on 12/27/2013) (Entered: 12/27/2013)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 6 of 37

12/27/2013 01/03/2014 01/07/2014 01/29/2014 01/29/2014 02/03/2014
02/03/2014 02/03/2014
02/05/2014 02/06/2014 02/14/2014
02/25/2014
02/25/2014 02/25/2014

10 CERTIFICATE OF SERVICE by California Department of Corrections and Rehabilitation re 8 Consent/Declination to Proceed Before a US Magistrate Judge (Tigno, Fiel) (Filed on 12/27/2013) (Entered: 12/27/2013)
11 First AMENDED COMPLAINT against All Defendants. Filed byVictor Guerrero. (Attachments: # 1 Certificate/Proof of Service)(Chien, Marsha) (Filed on 1/3/2014) Modified on 1/3/2014 (dtmS, COURT STAFF). (Entered: 01/03/2014)
12 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. William Alsup for all further proceedings. Magistrate Judge Nathanael M. Cousins no longer assigned to the case. Signed by Executive Committee on 1/7/14. (sv, COURT STAFF) (Filed on 1/7/2014) (Entered: 01/07/2014)
13 CLERKS NOTICE Scheduling Initial CMC on Reassignment. Case Management Statement due by 3/6/2014. Case Management Conference set for 3/13/2014 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 1/29/2014) (Entered: 01/29/2014)
14 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 13 Clerks Notice. Signed by Judge William Alsup on 10/16/12. (dt, COURT STAFF) (Filed on 1/29/2014) (Entered: 01/29/2014)
15 MOTION to Dismiss Complaint (FRCP 12(b)(6) filed by California Department of Corrections and Rehabilitation. Motion Hearing set for 3/27/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 2/18/2014. Replies due by 2/25/2014. (Neri, Miguel) (Filed on 2/3/2014) (Entered: 02/03/2014)
16 Proposed Order Granting Motion to Dismiss by California Department of Corrections and Rehabilitation. (Neri, Miguel) (Filed on 2/3/2014) (Entered: 02/03/2014)
17 MOTION to Dismiss Complaint (FRCP 12(b)(6) CORRECTION OF DOCKET # 15 filed by California Department of Corrections and Rehabilitation. Motion Hearing set for 3/27/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 2/18/2014. Replies due by 2/25/2014. (Neri, Miguel) (Filed on 2/3/2014) (Entered: 02/03/2014)
18 STIPULATION WITH PROPOSED ORDER to Modify Briefing Schedule filed by Victor Guerrero. (Chien, Marsha) (Filed on 2/5/2014) Modified on 2/5/2014 (dtmS, COURT STAFF). (Entered: 02/05/2014)
19 Order by Hon. William Alsup granting 18 Stipulation.(whalc3, COURT STAFF) (Filed on 2/6/2014) (Entered: 02/06/2014)
20 MOTION to Dismiss Complaint and Memorandum of P&A's filed by State Personnel Board. Motion Hearing set for 3/27/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 2/28/2014. Replies due by 3/7/2014. (Attachments: # 1 Proposed Order)(Egel, Dorothy) (Filed on 2/14/2014) (Entered: 02/14/2014)
21 CLERKS NOTICE Rescheduling Hearing, Set/Reset Deadlines as to 17 MOTION to Dismiss Complaint (FRCP 12(b)(6) CORRECTION OF DOCKET # 15 , 20 MOTION to Dismiss Complaint and Memorandum of P&A's. Motion Hearing set for 3/24/2014 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 2/25/2014) (Entered: 02/25/2014)
22 CLERKS NOTICE Rescheduling Hearing. Case Management Statement due by 3/17/2014. Case Management Conference set for 3/24/2014 02:00 PM in Courtroom 8, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 2/25/2014) (Entered: 02/25/2014)
23 STIPULATION WITH PROPOSED ORDER Granting Plaintiff Leave to File a Second Amended Complaint filed by Victor Guerrero. (Attachments: # 1 Declaration Marsha Chien in Support of Stipulation Granting Leave to File Second Amended Complaint, # 2 Exhibit A, # 3 Exhibit B)(Chien, Marsha) (Filed on 2/25/2014) (Entered: 02/25/2014)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 7 of 37

02/26/2014
02/26/2014 02/26/2014 02/27/2014 02/28/2014 03/05/2014 03/06/2014 03/07/2014 03/07/2014 03/13/2014 03/17/2014 03/18/2014 03/19/2014
03/19/2014 03/19/2014 03/19/2014

24 ORDER GRANTING STIPULATION TO FILE SECOND AMENDED COMPLAINT, WITHDRAWING DEFENDANTS' PENDING MOTIONS TO DISMISS, AND VACATING MARCH 24 HEARING by Hon. William Alsup granting 23 Stipulation. PLEASE SEPARATELY FILE SECOND AMENDED COMPLAINT. (whalc3, COURT STAFF) (Filed on 2/26/2014) (Entered: 02/26/2014)
25 AMENDED COMPLAINT (SECOND) for Employment Discrimination; Petition for Writs of Mandate against All Defendants. Filed byVictor Guerrero. (Chien, Marsha) (Filed on 2/26/2014) (Entered: 02/26/2014)
26 CLERKS NOTICE Rescheduling Hearing. Case Management Statement due by 3/13/2014. Case Management Conference set for 3/20/2014 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 2/26/2014) (Entered: 02/26/2014)
27 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Chien, Marsha) (Filed on 2/27/2014) (Entered: 02/27/2014)
28 ADR Clerks Notice Setting ADR Phone Conference on Tuesday, March 18, 2014 at 11:00 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 2/28/2014) (Entered: 02/28/2014)
29 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Chien, Marsha) (Filed on 3/5/2014) (Entered: 03/05/2014)
30 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Neri, Miguel) (Filed on 3/6/2014) (Entered: 03/06/2014)
31 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Egel, Dorothy) (Filed on 3/7/2014) (Entered: 03/07/2014)
32 STIPULATION WITH PROPOSED ORDER CONTINUING CASE MANAGEMENT CONFERENCE filed by California Department of Corrections and Rehabilitation. (Tigno, Fiel) (Filed on 3/7/2014) (Entered: 03/07/2014)
33 JOINT CASE MANAGEMENT STATEMENT filed by California Department of Corrections and Rehabilitation. (Tigno, Fiel) (Filed on 3/13/2014) (Entered: 03/13/2014)
34 ORDER DENYING STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE by Judge William Alsup [denying 32 Stipulation]. (whasec, COURT STAFF) (Filed on 3/17/2014) (Entered: 03/17/2014)
ADR Remark: ADR Phone Conference held on 3/18/2014 with Daniel Bowling, ADR Program Staff Attorney. Further ADR Phone Conference scheduled for 6/11/2014 at 11:00 AM. Call−in information remains the same. (cmf, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
35 MOTION to Dismiss Second Amended Complaint (FRCP 12(b)(6)) filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 5/1/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/2/2014. Replies due by 4/9/2014. (Neri, Miguel) (Filed on 3/19/2014) (Entered: 03/19/2014)
36 Request for Judicial Notice re 35 MOTION to Dismiss Second Amended Complaint (FRCP 12(b)(6)) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Related document(s) 35 ) (Neri, Miguel) (Filed on 3/19/2014) (Entered: 03/19/2014)
37 Proposed Order re 35 MOTION to Dismiss Second Amended Complaint (FRCP 12(b)(6)) by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 3/19/2014) (Entered: 03/19/2014)
38 MOTION to Dismiss Second Amended Complaint and Memorandum of P&As in Support Thereof filed by State Personnel Board. Motion Hearing set for 5/1/2014

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 8 of 37

03/20/2014
03/20/2014
03/21/2014 04/01/2014
04/03/2014 04/03/2014 04/03/2014 04/10/2014
04/10/2014 04/29/2014 05/01/2014
05/02/2014 05/05/2014 05/05/2014 05/07/2014

08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/2/2014. Replies due by 4/9/2014. (Attachments: # 1 Proposed Order)(Egel, Dorothy) (Filed on 3/19/2014) (Entered: 03/19/2014)
39 Minute Entry: Initial Case Management Conference held on 3/20/2014 before Judge William Alsup (Date Filed: 3/20/2014). Jury Selection set for 5/11/2015 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 3/20/2014) (Entered: 03/20/2014)
40 CASE MANAGEMENT SCHEDULING ORDER: ORDER REFERRING CASE to Magistrate Judge Donna M. Ryu for Mediation/Settlement. Discovery due by 1/30/2015. Jury Trial set for 5/11/2015 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Motions due by 3/12/2015. Pretrial Conference set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Signed by Judge William Alsup on 3/20/2014. (whasec, COURT STAFF) (Filed on 3/20/2014) (Entered: 03/20/2014)
CASE REFERRED to Magistrate Judge Donna M. Ryu for Settlement (ahm, COURT STAFF) (Filed on 3/21/2014) (Entered: 03/21/2014)
41 ORDER SETTING SETTLEMENT CONFERENCE: Settlement Conference set for 7/29/2014 11:00 AM before Magistrate Judge Donna M. Ryu. Signed by Magistrate Judge Donna M. Ryu on 4/1/14. (ig, COURT STAFF) (Filed on 4/1/2014) (Entered: 04/01/2014)
42 RESPONSE (re 35 MOTION to Dismiss Second Amended Complaint (FRCP 12(b)(6)) ) filed byVictor Guerrero. (Chien, Marsha) (Filed on 4/3/2014) (Entered: 04/03/2014)
43 RESPONSE (re 38 MOTION to Dismiss Second Amended Complaint and Memorandum of P&As in Support Thereof ) filed byVictor Guerrero. (Chien, Marsha) (Filed on 4/3/2014) (Entered: 04/03/2014)
44 Request for Judicial Notice filed byVictor Guerrero. (Attachments: # 1 Exhibit Exhibit A)(Chien, Marsha) (Filed on 4/3/2014) (Entered: 04/03/2014)
45 REPLY (re 35 MOTION to Dismiss Second Amended Complaint (FRCP 12(b)(6)) ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 4/10/2014) (Entered: 04/10/2014)
46 REPLY (re 38 MOTION to Dismiss Second Amended Complaint and Memorandum of P&As in Support Thereof ) filed byState Personnel Board. (Egel, Dorothy) (Filed on 4/10/2014) (Entered: 04/10/2014)
47 REQUEST RE UPCOMING HEARING. Signed by Judge Alsup on 4/29/2014. (whalc3, COURT STAFF) (Filed on 4/29/2014) (Entered: 04/29/2014)
48 Minute Entry: Motion Hearing held on 5/1/2014 before Judge William Alsup (Date Filed: 5/1/2014) re 35 MOTION to Dismiss Second Amended Complaint (FRCP 12(b)(6)) filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll. (Court Reporter James Pence.) (dt, COURT STAFF) (Date Filed: 5/1/2014) (Entered: 05/01/2014)
49 REQUEST FOR SUPPLEMENTAL BRIEFING. Signed by Judge Alsup on 5/2/2014. (whalc3, COURT STAFF) (Filed on 5/2/2014) (Entered: 05/02/2014)
50 Supplemental Brief re 49 Order filed byState Personnel Board. (Related document(s) 49 ) (Egel, Dorothy) (Filed on 5/5/2014) (Entered: 05/05/2014)
51 RESPONSE to re 49 Order by Victor Guerrero. (Chien, Marsha) (Filed on 5/5/2014) (Entered: 05/05/2014)
52 ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS FEDERAL CLAIMS AND DISMISSING ALL CLAIMS BROUGHT UNDER CALIFORNIA STATE LAW. Signed by Judge Alsup on 5/7/2014. (whalc3, COURT STAFF) (Filed on 5/7/2014) (Entered: 05/07/2014)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 9 of 37

05/13/2014 05/14/2014 05/14/2014 05/20/2014 05/21/2014 05/22/2014 05/29/2014
06/11/2014 06/11/2014 06/11/2014 06/19/2014
06/24/2014 06/27/2014 06/27/2014

53 MOTION to Continue Hearing re 52 Order filed by State Personnel Board. (Egel, Dorothy) (Filed on 5/13/2014) Modified on 5/13/2014 (dtmS, COURT STAFF). (Entered: 05/13/2014)
54 ORDER GRANTING MOTION TO CONTINUE HEARING. Summary Judgment Motion Hearing set for 10/2/2014 08:00 AM before Hon. William Alsup. Signed by Judge Alsup on 5/14/2014. (whalc3, COURT STAFF) (Filed on 5/14/2014) (Entered: 05/14/2014)
Motions terminated: 53 MOTION to Continue filed by State Personnel Board.. Signed by Judge Alsup on 5/14/2014. (whalc3, COURT STAFF) (Filed on 5/14/2014) (Entered: 05/14/2014)
55 NOTICE by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp Notice of Appearance By Counsel (Young, Christopher) (Filed on 5/20/2014) (Entered: 05/20/2014)
56 STIPULATION WITH PROPOSED Protective ORDER filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Tigno, Fiel) (Filed on 5/21/2014) Modified on 5/21/2014 (dtmS, COURT STAFF). (Entered: 05/21/2014)
57 ORDER RE STIPULATED PROTECTIVE ORDER by Hon. William Alsup granting 56 Stipulation.(whalc3, COURT STAFF) (Filed on 5/22/2014) (Entered: 05/22/2014)
58 MOTION for Leave to File Third Amended Complaint filed by Victor Guerrero. Motion Hearing set for 7/10/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 6/12/2014. Replies due by 6/19/2014. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit)(Chien, Marsha) (Filed on 5/29/2014) (Entered: 05/29/2014)
59 RESPONSE (re 58 MOTION to Amend/Correct ) filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 6/11/2014) Modified on 6/11/2014 (dtmS, COURT STAFF). (Entered: 06/11/2014)
ADR Remark: Further ADR Phone Conference scheduled for 6/11/2014 at 11:00 AM is off calendar. (cmf, COURT STAFF) (Filed on 6/11/2014) (Entered: 06/11/2014)
60 RESPONSE (re 58 MOTION to Amend/Correct ) filed byState Personnel Board. (Egel, Dorothy) (Filed on 6/11/2014) Modified on 6/11/2014 (dtmS, COURT STAFF). (Entered: 06/11/2014)
61 REPLY (re 58 MOTION to Amend/Correct ) Leave to File Third Amended Complaint filed byVictor Guerrero. (Attachments: # 1 Declaration Marsha Chien in Support of Reply, # 2 Exhibit Exhibit A− Declaration of Marsha Chien in Support of Reply, # 3 Exhibit Exhibit B− Declaration of Marsha Chien in Support of Reply, # 4 Exhibit Exhibit C− Declaration of Marsha Chien in Support of Reply, # 5 Exhibit Exhibit D− Declaration of Marsha Chien in Support of Reply)(Chien, Marsha) (Filed on 6/19/2014) (Entered: 06/19/2014)
62 ANSWER to Amended Complaint And Petition For Writs Of Mandate; Jury Demand byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 6/24/2014) Modified on 6/24/2014 (dtmS, COURT STAFF). (Entered: 06/24/2014)
63 CLERKS NOTICE Rescheduling Hearing, Set/Reset Deadlines as to 58 MOTION to Amend/Correct . Motion Hearing set for 7/8/2014 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 6/27/2014) (Entered: 06/27/2014)
64 Defendants ANSWER to Amended Complaint and Petition for Writs of Mandate byState Personnel Board, Suzanne Ambrose and Barbara Leashore. (Egel, Dorothy) (Filed on 6/27/2014) Modified on 6/27/2014 (dtmS, COURT STAFF). (Entered: 06/27/2014)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 10 of 37

07/08/2014 07/08/2014
07/08/2014
07/08/2014 07/08/2014 07/08/2014
07/08/2014 07/10/2014 07/10/2014 07/10/2014 07/10/2014 07/10/2014
07/10/2014

65 ORDER RE SUPPLEMENTAL BRIEFING. Signed by Judge Alsup on 7/8/2014. (whalc3, COURT STAFF) (Filed on 7/8/2014) (Entered: 07/08/2014)
66 MOTION for Summary Judgment or Alternatively Partial Summary Judgment filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 10/2/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 9/2/2014. Replies due by 9/9/2014. (Neri, Miguel) (Filed on 7/8/2014) Modified on 7/8/2014 (dtmS, COURT STAFF). (Entered: 07/08/2014)
67 Declaration of ROBERT O'BRIEN in Support of 66 MOTION for Summary Judgment OR, ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 66 ) (Neri, Miguel) (Filed on 7/8/2014) (Entered: 07/08/2014)
68 Declaration of NIDA SPALDING in Support of 66 MOTION for Summary Judgment OR, ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 66 ) (Neri, Miguel) (Filed on 7/8/2014) (Entered: 07/08/2014)
69 Proposed Order re 66 MOTION for Summary Judgment OR, ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 7/8/2014) (Entered: 07/08/2014)
70 MOTION for Summary Judgment ; Points and Authorities in Support of Motion filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Motion Hearing set for 10/2/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 7/22/2014. Replies due by 7/29/2014. (Attachments: # 1 Declaration of LaGrandeur in Support of SPB Defs' MSJ, # 2 Declaration of Leashore in Support of SPB Defs' MSJ, # 3 Exhibit C of Leashore's Declaraton, # 4 Exhibit E of Leashore's Declaration)(Egel, Dorothy) (Filed on 7/8/2014) (Entered: 07/08/2014)
75 Minute Entry: Motion Hearing held on 7/8/2014 before Judge William Alsup (Date Filed: 7/8/2014) re 58 MOTION to Amend/Correct filed by Victor Guerrero. (Court Reporter Rhonda Aquilina.) (dt, COURT STAFF) (Date Filed: 7/8/2014) (Entered: 07/10/2014)
71 Response to Order to Show Cause 65 Order byVictor Guerrero. (Chien, Marsha) (Filed on 7/10/2014) (Entered: 07/10/2014)
72 Declaration of Marsha Chien in Support of 71 Response to Order to Show Cause filed byVictor Guerrero. (Attachments: # 1 Exhibit Exhibit A−F)(Related document(s) 71 ) (Chien, Marsha) (Filed on 7/10/2014) (Entered: 07/10/2014)
73 Administrative Motion to File Under Seal ISO Plaintiffs response filed by Victor Guerrero. (Attachments: # 1 Proposed Order, # 2 Exhibit REDACTED Exhibit A−F, # 3 Exhibit Unredacted Exhibit− A (B−E))(Chien, Marsha) (Filed on 7/10/2014) (Entered: 07/10/2014)
74 Proposed Order re 58 MOTION to Amend/Correct Granting Plaintiff Leave to File Third Amended Complaint by Victor Guerrero. (Chien, Marsha) (Filed on 7/10/2014) (Entered: 07/10/2014)
76 Amended MOTION for Summary Judgment ; Points and Authorities in Support of Motion filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Motion Hearing set for 10/2/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 7/24/2014. Replies due by 7/31/2014. (Egel, Dorothy) (Filed on 7/10/2014) Modified on 7/10/2014 (dtmS, COURT STAFF). (Entered: 07/10/2014)
Electronic filing error. Incorrect event used.Corrected by Clerk's Office. No further action is necessary. Re: 76 MOTION to Amend/Correct 70 MOTION for Summary Judgment ; Points and Authorities in Support of Motion filed by Suzanne Ambrose,

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 11 of 37

07/11/2014 07/11/2014 07/11/2014
07/17/2014 07/22/2014 07/29/2014 08/11/2014 08/12/2014 08/15/2014
08/18/2014 08/29/2014 09/02/2014

Barbara Leashore, State Personnel Board (dtmS, COURT STAFF) (Filed on 7/10/2014) (Entered: 07/10/2014)
Set/Reset Deadlines as to 76 MOTION for Summary Judgment. Responses due by 9/2/2014. Replies due by 9/9/2014. (dtmS, COURT STAFF) (Filed on 7/11/2014) (Entered: 07/11/2014)
77 REPLY (re 58 MOTION to Amend/Correct ) to Plaintiff's Response filed bySuzanne Ambrose, Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, Barbara Leashore, V Mayol, V Myers, D Sharp, State Personnel Board. (Young, Christopher) (Filed on 7/11/2014) (Entered: 07/11/2014)
78 CLERKS NOTICE: This matter is scheduled for a settlement conference on 7/29/2014 11:00 AM before Magistrate Judge Donna M. Ryu. Per this court's Notice of settlement conference and Order, see Docket 41 , the parties are required to lodge their settlement conference documents by 7/21/2014. Counsel is hereby ordered to email copies of their settlement conference documents to dmrpo@cand.uscourts.gov in addition to lodging them with the court by that date. The subject heading of the email shall clearly identify the case name, case number, and party emailing the documents. (This is a text only docket entry, there is no document associated with this notice.) (igS, COURT STAFF) (Filed on 7/11/2014). (Entered: 07/11/2014)
79 ORDER DENYING PLAINTIFF'S MOTION TO AMEND WITHOUT PREJUDICE. RENEWED MOTION TO AMEND DUE BY 9/2/2014. Motion Hearing set for 10/2/2014 at 08:00 AM before Hon. William Alsup. Signed by Judge Alsup on 7/17/2014. (whalc3, COURT STAFF) (Filed on 7/17/2014) (Entered: 07/17/2014)
80 Order by Hon. William Alsup granting 73 Administrative Motion to File Under Seal.(whalc3, COURT STAFF) (Filed on 7/22/2014) (Entered: 07/22/2014)
81 Minute Entry: Settlement Conference HELD before Magistrate Judge Donna M. Ryu. CDCR counsel to contact Judge Ryu with response to current proposal by noon on 8/18/2014. (FTR Recording: Not Recorded) (ig, COURT STAFF) (Date Filed: 7/29/2014) (Entered: 07/30/2014)
82 STIPULATION WITH PROPOSED ORDER Re: Third−Party Privacy filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Tigno, Fiel) (Filed on 8/11/2014) (Entered: 08/11/2014)
83 Stipulated Protective Order by Hon. William Alsup granting 82 Stipulation.(whalc3, COURT STAFF) (Filed on 8/12/2014) Modified on 8/12/2014 (dtmS, COURT STAFF). (Entered: 08/12/2014)
84 STIPULATION WITH PROPOSED ORDER to Extend Plaintiffs Deadline to File Motion to Amend filed by Victor Guerrero. (Attachments: # 1 Declaration Declaration of Marsha Chien in Support of Stipulation to Extend Plaintiffs Deadline to File Motion to Amend, # 2 Exhibit Exhibits A B of Declaration of Marsha Chien in Support of Stipulation to Extend Plaintiffs Deadline to File Motion to Amend)(Chien, Marsha) (Filed on 8/15/2014) (Entered: 08/15/2014)
85 ORDER RE STIPULATION TO EXTEND DEADLINE TO FILE MOTION TO AMEND by Hon. William Alsup re 84 Stipulation. Motion due September 30, 2014. (whalc1, COURT STAFF) (Filed on 8/18/2014) (Entered: 08/18/2014)
86 Administrative Motion to File Under Seal filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Redacted Version of List, # 4 Unredacted Version of List)(Young, Christopher) (Filed on 8/29/2014) Modified on 8/29/2014 (dtmS, COURT STAFF). (Entered: 08/29/2014)
87 ORDER GRANTING DEFENDANT CDCR'S ADMINISTRATIVE MOTION TO FILE DOCUMENT UNDER SEAL by Hon. William Alsup re 86 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 9/2/2014) (Entered: 09/02/2014)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 12 of 37

09/02/2014 09/02/2014 09/02/2014
09/02/2014 09/02/2014 09/02/2014 09/02/2014 09/09/2014 09/09/2014 09/11/2014 09/12/2014 09/16/2014 09/23/2014

88 RESPONSE (re 66 MOTION for Summary Judgment filed byVictor Guerrero. (Attachments: # 1 Declaration Christopher Ho ISO Opposition to CDCR's MSJ, # 2 Exhibits A − Y − Christopher Ho Dec ISO Opp to CDCR MSJ)(Ho, Christopher) (Filed on 9/2/2014) Modified on 9/3/2014 (dtmS, COURT STAFF). (Entered: 09/02/2014)
89 RESPONSE (re 76 MOTION for Summary Judgment ) filed byVictor Guerrero. (Attachments: # 1 Declaration Christopher Ho Dec ISO Opposition to SPB MSJ, # 2 Exhibit Exhibits A − EE − Christopher Ho Dec ISO Opposition to SPB MSJ)(Ho, Christopher) (Filed on 9/2/2014) Modified on 9/3/2014 (dtmS, COURT STAFF). (Entered: 09/02/2014)
90 MOTION to Strike Statements of Robert OBrien 67 filed by Victor Guerrero. Motion Hearing set for 10/8/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 9/16/2014. Replies due by 9/23/2014. (Attachments: # 1 Declaration Christopher Ho Dec ISO Motion to Strike Statements of R. OBrien ISO CDCR − MSJ, # 2 Exhibit Exhibits A − E− Christopher Ho Dec ISO Motion to Strike Statements of R. OBrien ISO CDCR − MSJ, # 3 Proposed Order Granting Motion to Strike Statements of R. OBrien ISO CDCR − MSJ)(Ho, Christopher) (Filed on 9/2/2014) Modified on 9/3/2014 (dtmS, COURT STAFF). Modified on 9/4/2014 (dtmS, COURT STAFF). (Entered: 09/02/2014)
91 DECLARATION of Marc Bendick, Jr., Ph.D in Support re 88 Opposition filed byVictor Guerrero. (Ho, Christopher) (Filed on 9/2/2014) Modified on 9/3/2014 (dtmS, COURT STAFF). (Entered: 09/02/2014)
92 DECLARATION of Megan C. Kurlychek in Support re 88 Opposition filed by Victor Guerrero. (Ho, Christopher) (Filed on 9/2/2014) Modified on 9/3/2014 (dtmS, COURT STAFF). (Entered: 09/02/2014)
93 DECLARATION of John P. Hausknecht in Support re 88 Opposition filed by Victor Guerrero. (Ho, Christopher) (Filed on 9/2/2014) Modified on 9/3/2014 (dtmS, COURT STAFF). (Entered: 09/02/2014)
Set/Reset Deadlines as to 90 MOTION to Strike Statements of Robert OBrien ISO CDCR − Motion for Summary Judgment. Motion Hearing set for 10/2/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 9/2/2014) (Entered: 09/09/2014)
94 REPLY (re 76 MOTION for Summary Judgment ) filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Attachments: # 1 Declaration of Dorothy Egel)(Egel, Dorothy) (Filed on 9/9/2014) Modified on 9/9/2014 (dtmS, COURT STAFF). (Entered: 09/09/2014)
95 REPLY (re 66 MOTION for Summary Judgment filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Declaration Christopher M. Young)(Neri, Miguel) (Filed on 9/9/2014) Modified on 9/9/2014 (dtmS, COURT STAFF). (Entered: 09/09/2014)
96 STIPULATION WITH PROPOSED ORDER Regarding SPB Witness Testimony filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 9/11/2014) (Entered: 09/11/2014)
97 STIPULATION REGARDING SPB WITNESS TESTIMONY AND ORDER by Hon. William Alsup granting 96 Stipulation.(whalc1, COURT STAFF) (Filed on 9/12/2014) (Entered: 09/12/2014)
98 RESPONSE (re 90 MOTION to Strike ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Proposed Order)(Neri, Miguel) (Filed on 9/16/2014) Modified on 9/16/2014 (dtmS, COURT STAFF). (Entered: 09/16/2014)
99 ORDER RE HEARING DATE AND REQUEST FOR INFORMATION Responses due by 9/29/2014 at noon. Motion Hearing set for 9/30/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on September 23, 2014. (whalc1, COURT STAFF) (Filed on 9/23/2014) (Entered: 09/23/2014)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 13 of 37

09/23/2014
09/24/2014 09/29/2014 09/29/2014
09/30/2014 09/30/2014 09/30/2014 09/30/2014 10/06/2014 10/07/2014 10/07/2014 10/08/2014 10/09/2014 10/13/2014

100 REPLY (re 90 MOTION to Strike Statements of Robert OBrien ISO CDCR − Motion for Summary Judgment ) filed byVictor Guerrero. (Attachments: # 1 Declaration Marsha Chien in Support of Plaintiffs Reply in Support of Motion to Strike Statements of Robert OBrien, # 2 Exhibit Exhibits A− E for Declaration of Marsha Chien in Support of Plaintiffs Reply in Support of Motion to Strike Statements of Robert OBrien)(Chien, Marsha) (Filed on 9/23/2014) (Entered: 09/23/2014)
101 ORDER RE MOTION TO STRIKE. Signed by Judge Alsup on September 24, 2014. (whalc1, COURT STAFF) (Filed on 9/24/2014) (Entered: 09/24/2014)
102 Statement re 99 Order, Set Deadlines/Hearings,, Joint Statement Re Request for Information by Victor Guerrero. (Attachments: # 1 Exhibit A to Joint Statement Re Request for Information)(Chien, Marsha) (Filed on 9/29/2014) (Entered: 09/29/2014)
103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint filed by Victor Guerrero. Motion Hearing set for 9/30/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 10/14/2014. Replies due by 10/21/2014. (Attachments: # 1 Declaration Declaration of Marsha Chien in Support of Plaintiffs Renewed Motion to Amend, # 2 Exhibit Exhibits A− W Declaration of Marsha Chien in Support of Plaintiffs Renewed Motion to Amend)(Chien, Marsha) (Filed on 9/29/2014) (Entered: 09/29/2014)
104 ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT by Judge Alsup re 66 Motion for Summary Judgment; re 76 Motion for Summary Judgment; re 90 Motion to Strike (whalc1, COURT STAFF) (Filed on 9/30/2014) (Entered: 09/30/2014)
105 ERRATA re 91 Declaration of Marc Bendick, Jr., Ph.D. filed byVictor Guerrero. (Attachments: # 1 Declaration Revised Declaration of Marc Bendick, Jr., Ph.D.*)(Related document(s) 88 ) (Chien, Marsha) (Filed on 9/30/2014) Modified on 9/30/2014 (dtmS, COURT STAFF). (Entered: 09/30/2014)
106 Minute Entry: Motion Hearing held on 9/30/2014 before Judge William Alsup (Date Filed: 9/30/2014) re 103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint filed by Victor Guerrero. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 9/30/2014) (Entered: 09/30/2014)
Electronic filing error. Incorrect event used. Correct event is Errata.Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 105 Declaration in Opposition, filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 9/30/2014) (Entered: 09/30/2014)
Set/Reset Hearing re 103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint Motion Hearing set for 10/30/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (whalc1, COURT STAFF) (Filed on 10/6/2014) (Entered: 10/06/2014)
107 STIPULATION WITH PROPOSED ORDER re 103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint Re− setting Hearing on Plaintiffs Motion to Amend (Dkt. No. 103) for November 20, 2014 filed by Victor Guerrero. (Chien, Marsha) (Filed on 10/7/2014) (Entered: 10/07/2014)
108 ORDER TO SHOW CAUSE RE OCTOBER 30 HEARING DATE. Response due October 10 at noon.. Signed by Judge Alsup on October 7, 2014. (whalc1, COURT STAFF) (Filed on 10/7/2014) (Entered: 10/07/2014)
109 Statement re 108 Order [Joint Statement in Response to OSC re October 30, 2014, Hearing Date] by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 10/8/2014) (Entered: 10/08/2014)
110 ORDER GRANTING STIPULATION TO CONTINUE HEARING TO NOVEMBER 20. re 107 Stipulation re 103 Motion. Motion Hearing set for 11/20/2014 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on October 9, 2014. (whalc1, COURT STAFF) (Filed on 10/9/2014) (Entered: 10/09/2014)
111 RESPONSE (re 103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint ) filed by Jeffrey Beard, California Department of

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 14 of 37

10/13/2014 10/14/2014 10/14/2014 10/20/2014
10/20/2014 10/29/2014 10/29/2014 11/17/2014 11/17/2014 12/24/2014
03/12/2015
03/12/2015
03/12/2015

Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 10/13/2014) Modified on 10/14/2014 (dtmS, COURT STAFF). (Entered: 10/13/2014)
112 DECLARATION of Christopher M. Young in Support re 111 Response filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 10/13/2014) Modified on 10/14/2014 (dtmS, COURT STAFF). (Entered: 10/13/2014)
Electronic filing error. Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 112 Declaration in Opposition, filed by V Myers (dtmS, COURT STAFF) (Filed on 10/14/2014) (Entered: 10/14/2014)
113 RESPONSE (re 103 Renewed Motion For Leave To File An Amended Complaint ) filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Attachments: # 1 Declaration)(Egel, Dorothy) (Filed on 10/14/2014) Modified on 10/15/2014 (dtmS, COURT STAFF). (Entered: 10/14/2014)
114 REPLY (re 103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint ) filed byVictor Guerrero. (Attachments: # 1 Declaration of Marsha Chien in Support of Plaintiff's Reply, # 2 Exhibit A−E to Chien Declaration)(Chien, Marsha) (Filed on 10/20/2014) Modified on 10/20/2014 (dtmS, COURT STAFF). (Entered: 10/20/2014)
115 REPLY (re 103 Second MOTION Plaintiffs Renewed Motion For Leave To File An Amended Complaint ) < filed byVictor Guerrero. (Chien, Marsha) (Filed on 10/20/2014) Modified on 10/20/2014 (dtmS, COURT STAFF). (Entered: 10/20/2014)
116 ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT AND VACATING HEARING by Judge Alsup re 103 Motion, 110 Stip. (whalc1, COURT STAFF) (Filed on 10/29/2014) (Entered: 10/29/2014)
117 AMENDED COMPLAINT Third Amended Complaint for Employment Discrimination and Constitutional Violations against All Defendants. Filed byVictor Guerrero. (Chien, Marsha) (Filed on 10/29/2014) (Entered: 10/29/2014)
118 ANSWER to Third Amended Complaint with jury demand by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 11/17/2014) Modified on 11/17/2014 (dtmS, COURT STAFF). (Entered: 11/17/2014)
119 ANSWER to Third Amended Complaint bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 11/17/2014) Modified on 11/17/2014 (dtmS, COURT STAFF). (Entered: 11/17/2014)
120 ORDER ADVANCING TRIAL DATE TO MAY 4. Jury Selection set for 5/4/2015 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Jury Trial set for 5/4/2015 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on December 24, 2014. (whalc1, COURT STAFF) (Filed on 12/24/2014) (Entered: 12/24/2014)
121 Second MOTION for Summary Judgment or, Alternatively, Partial Summary Judgment filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/16/2015 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/26/2015. Replies due by 4/2/2015. (Neri, Miguel) (Filed on 3/12/2015) (Entered: 03/12/2015)
122 Declaration of Robert O'Brien in Support of 121 Second MOTION for Summary Judgment or, Alternatively, Partial Summary Judgment filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Related document(s) 121 ) (Neri, Miguel) (Filed on 3/12/2015) (Entered: 03/12/2015)
123 Declaration of J. Michael DuMond, Ph.D. in Support of 121 Second MOTION for Summary Judgment or, Alternatively, Partial Summary Judgment filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A through C)(Related

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 15 of 37

03/12/2015 03/12/2015
03/12/2015 03/12/2015 03/12/2015 03/13/2015 03/13/2015
03/16/2015 03/17/2015

document(s) 121 ) (Neri, Miguel) (Filed on 3/12/2015) (Entered: 03/12/2015)
124 Proposed Order re 121 Second MOTION for Summary Judgment or, Alternatively, Partial Summary Judgment by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 3/12/2015) (Entered: 03/12/2015)
125 Second MOTION for Summary Judgment Points and Authorities in Support of Motion filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Motion Hearing set for 4/16/2015 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/26/2015. Replies due by 4/2/2015. (Attachments: # 1 Declaration of Dorothy Egel in Support of MSJ, # 2 Exhibit of Dorothy Egel in Support of MSJ, # 3 Exhibit of Dorothy Egel in Support of MSJ, # 4 Exhibit of Dorothy Egel in Support of MSJ, # 5 Exhibit of Dorothy Egel in Support of MSJ, # 6 Exhibit of Dorothy Egel in Support of MSJ, # 7 Proposed Order)(Egel, Dorothy) (Filed on 3/12/2015) (Entered: 03/12/2015)
126 First MOTION for Summary Judgment against SPB Defendants filed by Victor Guerrero. Motion Hearing set for 4/16/2015 08:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/26/2015. Replies due by 4/2/2015. (Attachments: # 1 Declaration)(Chien, Marsha) (Filed on 3/12/2015) (Entered: 03/12/2015)
127 ***Unredacted Documents Removed per 133 EXHIBITS re 126 First MOTION for Summary Judgment filed by Victor Guerrero. (Chien, Marsha) (Filed on 3/12/2015) Modified on 3/16/2015 (dtmS, COURT STAFF). Modified on 3/18/2015 (rcsS, COURT STAFF). (Additional attachment(s) added on 4/23/2015: # 1 127−4, # 2 127−5, # 3 127−6, # 4 127−7, # 5 127−8, # 6 127−9, # 7 127−10) (dtmS, COURT STAFF). Modified on 4/23/2015 (dtmS, COURT STAFF). Modified on 4/23/2015 (dtmS, COURT STAFF). (Entered: 03/12/2015)
128 First MOTION for Summary Judgment against CDCR Defendants filed by Victor Guerrero. Motion Hearing set for 4/16/2015 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 3/26/2015. Replies due by 4/2/2015. (Attachments: # 1 Declaration, # 2 Proposed Order)(Chien, Marsha) (Filed on 3/12/2015) (Entered: 03/12/2015)
129 ***Unredacted Documents Removed per 133 EXHIBITS re 128 First MOTION for Summary Judgment filed by Victor Guerrero. (Chien, Marsha) (Filed on 3/13/2015) Modified on 3/16/2015 (dtmS, COURT STAFF). Modified on 3/18/2015 (rcsS, COURT STAFF). (Additional attachment(s) added on 4/23/2015: # 1 129−6, # 2 129−7) (dtmS, COURT STAFF). Modified on 4/23/2015 (dtmS, COURT STAFF). (Entered: 03/13/2015)
130 ORDER ADVANCING HEARING DATE, RE PAGE LIMITS, AND REQUESTING RESPONSES re 126 First MOTION for Summary Judgment, 125 Second MOTION for Summary Judgment, 128 First MOTION for Summary Judgment, 121 Second MOTION for Summary Judgment. Replies due by 4/1/2015 at noon. Motion Hearing set for 4/14/2015 09:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Joint statement due by 4/9/2015 at noon. Joint list due by 4/13/2015 at noon.. Signed by Judge Alsup on March 13, 2015. (whalc1, COURT STAFF) (Filed on 3/13/2015) (Entered: 03/13/2015)
131 ERRATA re 126 First MOTION for Summary Judgment against SPB Defendants, 128 First MOTION for Summary Judgment against CDCR Defendants Exhibits by Victor Guerrero. (Attachments: # 1 Exhibit 1 of 14, # 2 Exhibit 2 of 14, # 3 Exhibit 3 of 14, # 4 Exhibit 4 of 14, # 5 Exhibit 5 of 14, # 6 Exhibit 6 of 14, # 7 Exhibit 7 of 14, # 8 Exhibit 8 of 14, # 9 Exhibit 9 of 14, # 10 Exhibit 10 of 14, # 11 Exhibit 11 of 14, # 12 Exhibit 12 of 14, # 13 Exhibit 13 of 14, # 14 Exhibit 14 of 14)(Chien, Marsha) (Filed on 3/16/2015) (Entered: 03/16/2015)
132 MOTION to Remove Incorrectly Filed Document filed by Victor Guerrero. (Attachments: # 1 Declaration of Marsha Chien, # 2 Proposed Order)(Chien, Marsha) (Filed on 3/17/2015) (Entered: 03/17/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 16 of 37

03/17/2015 03/26/2015 03/26/2015 03/26/2015 03/26/2015
03/26/2015 03/26/2015 03/26/2015
04/01/2015 04/01/2015 04/01/2015

133 ORDER GRANTING MOTION TO REMOVE lNCORRECTLY FILED DOCUMENTS by Hon. William Alsup re 132 Motion to Remove Incorrectly Filed Document.(whalc1, COURT STAFF) (Filed on 3/17/2015) (Entered: 03/17/2015)
134 MOTION for Summary Judgment; −Opposition to re 126 Plaintiff's Motion for Summary Judgment filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Motion Hearing set for 4/14/2015 09:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/9/2015. Replies due by 4/16/2015. (Attachments: # 1 Declaration)(Egel, Dorothy) (Filed on 3/26/2015) (Entered: 03/26/2015)
135 NOTICE RE TRIAL DATE. Signed by Judge Alsup on March 26, 2015. (whalc1, COURT STAFF) (Filed on 3/26/2015) (Entered: 03/26/2015)
136 RESPONSE (re 128 First MOTION for Summary Judgment against CDCR Defendants ) (Opposition) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Tigno, Fiel) (Filed on 3/26/2015) (Entered: 03/26/2015)
137 RESPONSE (re 125 Second MOTION for Summary Judgment Points and Authorities in Support of Motion ) filed byVictor Guerrero. (Attachments: # 1 Declaration Declaration of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to Defendants Second Motion for Summary Judgment, # 2 Exhibit Exhibits A E of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to Defendants Second Motion for Summary Judgment, # 3 Exhibit Exhibits F OO of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to Defendants Second Motion for Summary Judgment)(Chien, Marsha) (Filed on 3/26/2015) (Entered: 03/26/2015)
138 Declaration of Christopher M. Young in Support of 136 Opposition/Response to Motion, filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A)(Related document(s) 136 ) (Tigno, Fiel) (Filed on 3/26/2015) (Entered: 03/26/2015)
139 Declaration of Fiel D. Tigno in Support of 136 Opposition/Response to Motion, filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A)(Related document(s) 136 ) (Tigno, Fiel) (Filed on 3/26/2015) (Entered: 03/26/2015)
140 RESPONSE (re 121 Second MOTION for Summary Judgment or, Alternatively, Partial Summary Judgment ) filed byVictor Guerrero. (Attachments: # 1 Declaration Declaration of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to CDCR Defendants Motion for Summary Judgment or, Alternatively, Partial Summary Judgment, # 2 Exhibit Exhibits A K to Declaration of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to CDCR Defendants Motion for Summary Judgment, # 3 Exhibit Exhibits L U to Declaration of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to CDCR Defendants Motion for Summary Judgment, # 4 Exhibit Exhibits V UU to Declaration of Ruby Vazquez−Ponce in Support of Plaintiffs Opposition to CDCR Defendants Motion for Summary Judgment, # 5 Declaration Declaration of Christopher Ho in Support of Plaintiffs Opposition to CDCR Defendants Motion for Summary Judgment or, Alternatively, Partial Summary Judgment, # 6 Declaration Exhibit A to Declaration of Christopher Ho in Support of Plaintiffs Opposition to CDCR Defendants Motion for Summary Judgment)(Chien, Marsha) (Filed on 3/26/2015) (Entered: 03/26/2015)
141 REPLY (re 128 First MOTION for Summary Judgment against CDCR Defendants ) filed byVictor Guerrero. (Chien, Marsha) (Filed on 4/1/2015) (Entered: 04/01/2015)
142 REPLY re 125 Motion for Summary Judgment filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Attachments: # 1 Declaration of Egel in Support of SPB Defs' Reply to Opposition to MSJ)(Egel, Dorothy) (Filed on 4/1/2015) Modified on 4/1/2015 (dtmS, COURT STAFF). (Entered: 04/01/2015)
143 REPLY (re 126 First MOTION for Summary Judgment against SPB Defendants ) filed byVictor Guerrero. (Attachments: # 1 Declaration Dayan Garcia, # 2 Exhibit A to C − Dayan Garcia)(Chien, Marsha) (Filed on 4/1/2015) (Entered: 04/01/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 17 of 37

04/01/2015
04/01/2015
04/03/2015 04/03/2015 04/03/2015 04/07/2015 04/08/2015 04/09/2015 04/10/2015
04/10/2015 04/10/2015
04/13/2015 04/13/2015 04/14/2015 04/15/2015

Electronic filing error. Incorrect event used. Correct event is REPLYCorrected by Clerk's Office. No further action is necessary. Re: 142 MOTION for Summary Judgment filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board (dtmS, COURT STAFF) (Filed on 4/1/2015) (Entered: 04/01/2015)
144 REPLY (re 121 Second MOTION for Summary Judgment or, Alternatively, Partial Summary Judgment ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Declaration of Ron Jones, # 2 Exhibit A)(Neri, Miguel) (Filed on 4/1/2015) (Entered: 04/01/2015)
145 Statement [Pretrial Disclosures of Defs SPB and its Employees named in their Official Capacities] by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 4/3/2015) (Entered: 04/03/2015)
146 Statement [CDCR Defendants' FRCP 26(a)(3) Pretrial Disclosure] by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 4/3/2015) (Entered: 04/03/2015)
147 Exhibit List Plaintiffs Disclosures Pursuant to Federal Rule of Civil Procedure 26(a)(3) by Victor Guerrero.. (Attachments: # 1 Attachment A, # 2 Attachment B)(Chien, Marsha) (Filed on 4/3/2015) (Entered: 04/03/2015)
148 REQUEST FOR RESPONSE Response due by 4/10/2015 at noon.. Signed by Judge Alsup on April 7, 2015. (whalc1, COURT STAFF) (Filed on 4/7/2015) (Entered: 04/07/2015)
149 TRANSCRIPT ORDER for Daily Trial by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 4/8/2015) (Entered: 04/08/2015)
150 Statement Joint Statement Re Jury Trial by Victor Guerrero. (Chien, Marsha) (Filed on 4/9/2015) (Entered: 04/09/2015)
151 RESPONSE to re 148 Order, Set Deadlines/Hearings Response to Court's Request (Dkt. Doc. 148) by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 4/10/2015) (Entered: 04/10/2015)
152 Statement re 148 Order, Set Deadlines/Hearings Plaintiffs Response to the Courts April 7, 2015 Order by Victor Guerrero. (Chien, Marsha) (Filed on 4/10/2015) (Entered: 04/10/2015)
153 RESPONSE to re 148 Order, Set Deadlines/Hearings [State Personnel Board Defs' Response to Court's Request for Response (DKT. DOC. 148)] by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 4/10/2015) (Entered: 04/10/2015)
154 REQUEST FOR FURTHER RESPONSE Responses due by 4/14/2015 at 5:00 p.m.. Signed by Judge Alsup on April 13, 2015. (whalc1, COURT STAFF) (Filed on 4/13/2015) (Entered: 04/13/2015)
155 Statement Joint Statement Re Motions in Limine and Expected Length of Trial by Victor Guerrero. (Chien, Marsha) (Filed on 4/13/2015) (Entered: 04/13/2015)
156 Response re 154 Order, Set Deadlines/Hearings Response to Request for Further Response byVictor Guerrero. (Chien, Marsha) (Filed on 4/14/2015) (Entered: 04/14/2015)
157 Minute Entry for proceedings held before Hon. William Alsup: Motion Hearing held on 4/14/2015. re 126 First MOTION for Summary Judgment, 125 Second MOTION for Summary Judgmen, 128 First MOTION for Summary Judgment, 121 Second MOTION for Summary Judgment. Motions taken under submission. Court Reporter Lydia Zinn. Plaintiff Attorney Marsha Chen; Christopher Ho. Defendant Attorney Miguel Neri; Fiel Tigno; Chris Young; Dorothy Egel. Attachment minute order.(dtS, COURT STAFF) (Date Filed: 4/15/2015) (Entered: 04/15/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 18 of 37

04/16/2015 04/16/2015 04/16/2015 04/16/2015 04/16/2015 04/16/2015 04/16/2015
04/16/2015 04/17/2015 04/17/2015 04/20/2015 04/21/2015 04/22/2015 04/22/2015
04/22/2015

158 RESPONSE to Court's Request for Additional Briefing re Adequacy of State Administrative Mandamus by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Tigno, Fiel) (Filed on 4/16/2015) (Entered: 04/16/2015)
159 RESPONSE to Court's Request for Further Briefing Re: Adequacy of State Law Remedies by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 4/16/2015) (Entered: 04/16/2015)
160 NOTICE by Suzanne Ambrose, Barbara Leashore, State Personnel Board re 159 Response ( Non Motion ) [State Personnel Board Defs' Notice of Unavailability of Witness] (Egel, Dorothy) (Filed on 4/16/2015) (Entered: 04/16/2015)
161 Statement RESPONSE TO COURTS APRIL 14, 2015 ORDER FOR SUPPLEMENTAL BRIEFING by Victor Guerrero. (Chien, Marsha) (Filed on 4/16/2015) (Entered: 04/16/2015)
162 Response re 156 Response byVictor Guerrero. (Attachments: # 1 Declaration of Marsha Chien, # 2 Exhibit A − B of Marsha Chien Declaration)(Chien, Marsha) (Filed on 4/16/2015) (Entered: 04/16/2015)
Electronic filing error. E−filer's Attestation Required Purs to Local rule 5−1(I). Re: 161 Statement filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 4/16/2015) (Entered: 04/16/2015)
163 ERRATA re 161 Response to Court's Request for Information by Victor Guerrero. (Attachments: # 1 Corrected RESPONSE TO COURTS REQUEST FOR INFORMATION REGARDING PLAINTIFFS AVAILABILITY AND READINESS FOR TRIAL ON JUNE 15, 2015)(Chien, Marsha) (Filed on 4/16/2015) Modified on 4/16/2015 (dtmS, COURT STAFF). (Entered: 04/16/2015)
164 OMNIBUS ORDER RE CROSS−MOTIONS FOR SUMMARY JUDGMENT by Judge Alsup re 121 Motion for Summary Judgment; 125 Motion for Summary Judgment; 126 Motion for Summary Judgment; 128 Motion for Summary Judgment (whalc1, COURT STAFF) (Filed on 4/16/2015) (Entered: 04/16/2015)
165 Response Plaintiffs Objections to Defendants' Rule 26(a)(3) Disclosures byVictor Guerrero. (Chien, Marsha) (Filed on 4/17/2015) (Entered: 04/17/2015)
166 OBJECTIONS to Plaintiff's Pretrial Disclosures Pursuant to Fed.R.Civ.Pro. 26(a)(3) by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 4/17/2015) (Entered: 04/17/2015)
167 REQUEST FOR RESPONSE TO OBJECTIONS Responses due by 4/23/2015 at noon.. Signed by Judge Alsup on April 20, 2015. (whalc1, COURT STAFF) (Filed on 4/20/2015) (Entered: 04/20/2015)
168 NOTICE RE TRIAL DATE re trial 6/12/2015 07:30 AM before Hon. William Alsup.. Signed by Judge Alsup on April 21, 2015. (whalc1, COURT STAFF) (Filed on 4/21/2015) (Entered: 04/21/2015)
169 PRETRIAL MEMORANDUM Refiled CDCR Defs. Pretrial Disclosure FRCP 26(a)(3) by California Department of Corrections and Rehabilitation. (Neri, Miguel) (Filed on 4/22/2015) (Entered: 04/22/2015)
170 MOTION to Quash Defendant California Department of Corrections and Rehabilitation's Motion To Quash Subpoena; Motion in Limine No. 6 to Exclude Testimony of Secretary Jeffrey Beard; Request for Sanctions filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 5/6/2015. Replies due by 5/13/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
171 Proposed Order CDCR Def.'s Proposed Findings of Fact and Conclusions of Law by California Department of Corrections and Rehabilitation. (Neri, Miguel) (Filed on 4/22/2015) (Entered: 04/22/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 19 of 37

04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015
04/22/2015 04/22/2015
04/22/2015

172 Declaration of Christopher M. Young Supporting CDCR's Motion To Quash; Motion In Limine filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
173 Declaration of Miguel A. Neri Supporting CDCR's Motion to Quash; Motion In Limine filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
174 Proposed Order Granting CDCR Defendants'; Motion To Quash; Motion in Limine No. 6 and Request for Sanctions by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
175 MOTION in Limine Plainiff's No 1 with Defendants' Opposition filed by Victor Guerrero. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/19/2015. Replies due by 4/19/2015. (Chien, Marsha) (Filed on 4/22/2015) Modified on 4/22/2015 (dtmS, COURT STAFF). Modified on 4/22/2015 (dtmS, COURT STAFF). Modified on 4/22/2015 (dtmS, COURT STAFF). (Entered: 04/22/2015)
176 MOTION in Limine Defendant Motion In Limine #1 and Plaintiff Opposition To Limit Expert Testimony filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/19/2015. Replies due by 4/19/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
177 MOTION in Limine Defendant Motion In Limine #2 and Plaintiff Opposition Exclude Testimony of Kendall Welch filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/19/2015. Replies due by 4/19/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
178 MOTION in Limine Defendant Motion In Limine #3 and Plaintiff Opposition Exclude Testimony Relating To Less Discriminatory Alternatives filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/19/2015. Replies due by 4/19/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
179 MOTION in Limine Defendant Motion In Limine #4 and Plaintiff Opposition Exclude Expert Testimony of Daniel Vasquez filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/19/2015. Replies due by 4/19/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
180 MOTION in Limine Defendant Motion In Limine #5 and Plaintiff Opposition Plaintiff Testimony Relating to Background Not Made Known to Defendant filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/19/2015. Replies due by 4/19/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)
181 MOTION in Limine Defendant California Department of Corrections and Rehabilitation's Motion To Quash Subpoena; Motion in Limine No. 6 to Exclude Testimony of Secretary Jeffrey Beard; Request for Sanctions filed by California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Motion Hearing set for 4/29/2015 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 4/29/2015. Replies due by 4/29/2015. (Young, Christopher) (Filed on 4/22/2015) (Entered: 04/22/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 20 of 37

04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/22/2015 04/23/2015
04/23/2015 04/23/2015 04/23/2015 04/23/2015
04/24/2015
04/27/2015 04/29/2015

182 Proposed Pretrial Order (Joint) by D Sharp, K Carroll, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, S Cox, V Myers, C Hester. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Neri, Miguel) (Filed on 4/22/2015) (Entered: 04/22/2015)
183 TRIAL BRIEF by Victor Guerrero. (Chien, Marsha) (Filed on 4/22/2015) (Entered: 04/22/2015)
184 Proposed Findings of Fact by Suzanne Ambrose, Barbara Leashore, State Personnel Board . (Egel, Dorothy) (Filed on 4/22/2015) (Entered: 04/22/2015)
185 Proposed Findings of Fact by Victor Guerrero . (Chien, Marsha) (Filed on 4/22/2015) (Entered: 04/22/2015)
186 PRETRIAL MEMORANDUM Notice of Refiling Pretrial Disclosures by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Attachments: # 1 Exhibit Pretrial Disclosures)(Egel, Dorothy) (Filed on 4/22/2015) (Entered: 04/22/2015)
187 Exhibit List Plaintiffs Amended Disclosures Pursuant to Federal Rule of Civil Procedure 26(a)(3) by Victor Guerrero.. (Attachments: # 1 Attachment A and B)(Chien, Marsha) (Filed on 4/22/2015) (Entered: 04/22/2015)
188 REQUEST FOR RESPONSE. Signed by Judge Alsup on April 22, 2015. (whalc1, COURT STAFF) (Filed on 4/22/2015) (Entered: 04/22/2015)
189 RESPONSE to re 165 Response to Plaintiff's Objections to Defendants' Rule 26(a)(3) Disclosures by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A)(Neri, Miguel) (Filed on 4/23/2015) (Entered: 04/23/2015)
190 Witness List by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp CDCR's Amended Witness List_1. (Young, Christopher) (Filed on 4/23/2015) (Entered: 04/23/2015)
191 Response re 167 Order, Set Deadlines/Hearings Request for Responses to Objections to Rule 26(A)(3) Disclosures byVictor Guerrero. (Attachments: # 1 Exhibit A)(Chien, Marsha) (Filed on 4/23/2015) (Entered: 04/23/2015)
192 OBJECTIONS to re 187 Exhibit List Plaintiff's Amended Rule 26(a)(3) disclosures by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 4/23/2015) (Entered: 04/23/2015)
193 Declaration of Christopher M. Young in Support of 187 Exhibit List CDCR's Objection to Plt's Amended Disclosures Pursuant to Federal Rule of Civil Procedure 26(a)(3) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Related document(s) 187 ) (Young, Christopher) (Filed on 4/23/2015) (Entered: 04/23/2015)
194 Response re 188 Order byVictor Guerrero. (Attachments: # 1 Declaration Marsha Chien in Support of Plaintiffs Reply In Support of Plaintiffs Motion in Limine No. 5, # 2 Exhibit Exhibit A to Declaration of Marsha Chien in Support of Plaintiffs Reply In Support of Plaintiffs Motion in Limine No. 5)(Chien, Marsha) (Filed on 4/24/2015) (Entered: 04/24/2015)
195 Response re 188 Order byVictor Guerrero. (Attachments: # 1 Declaration Marsha Chien, # 2 Exhibit A)(Chien, Marsha) (Filed on 4/27/2015) (Entered: 04/27/2015)
196 Minute Entry for proceedings held before Hon. William Alsup: Interim Pretrial Conference held on 4/29/2015. Bench Trial set for 6/12/2015 7:30 AM. Each side shall have 10 hours for case−in−chief and 30 minutes for opening statements. Court Reporter Belle Ball. Plaintiff Attorney Marsha Chien; Christopher Ho. Defendant Attorney Dorothy Egel; Chris Young; Fiel Tigno; Miguel Neri; Alvin Gittisriboongul. (dt, COURT STAFF) (Date Filed: 4/29/2015) (Entered: 04/29/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 21 of 37

04/30/2015 04/30/2015 04/30/2015 05/04/2015 05/06/2015 05/07/2015 05/14/2015 05/14/2015 05/15/2015 05/18/2015
05/18/2015 05/20/2015 05/20/2015 05/21/2015 05/21/2015 05/29/2015

197 TENTATIVE ORDER RE OBJECTIONS TO FRCP 26 DISCLOSURES Objections due by 5/4/2015 at noon.. Signed by Judge Alsup on April 30, 2015. (whalc1, COURT STAFF) (Filed on 4/30/2015) (Entered: 04/30/2015)
198 OMNIBUS ORDER RE MOTIONS IN LIMINE by Judge Alsup re 170 Motion to Quash; 175 Motion in Limine; 176 Motion in Limine; 177 Motion in Limine; 178 Motion in Limine; 179 Motion in Limine; 180 Motion in Limine; 181 Motion in Limine (whalc1, COURT STAFF) (Filed on 4/30/2015) (Entered: 04/30/2015)
199 FINAL PRETRIAL ORDER Binder due by 6/8/2015. Bench Trial set for 6/12/2015 07:30 AM before Hon. William Alsup.. Signed by Judge Alsup on April 30, 2015. (whalc1, COURT STAFF) (Filed on 4/30/2015) (Entered: 04/30/2015)
200 RESPONSE to re 197 Order, Set Deadlines/Hearings PLAINTIFFS RESPONSE TO TENTATIVE ORDER RE OBJECTIONS TO FRCP 26 DISCLOSURES by Victor Guerrero. (Chien, Marsha) (Filed on 5/4/2015) (Entered: 05/04/2015)
201 ORDER RE FRCP 26 DISCLOSURE OBJECTIONS. Signed by Judge Alsup on May 6, 2015. (whalc1, COURT STAFF) (Filed on 5/6/2015) (Entered: 05/06/2015)
202 TRANSCRIPT ORDER by California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp for Court Reporter Belle Ball. (Young, Christopher) (Filed on 5/7/2015) (Entered: 05/07/2015)
203 Motion for Administrative Relief Pursuant to Local Rule 7−11 by Victor Guerrero. (Attachments: # 1 Declaration of Marsha Chien, # 2 Exhibit A − E, # 3 Exhibit F − J, # 4 Proposed Order)(Chien, Marsha) (Filed on 5/14/2015) Modified on 5/14/2015 (dtmS, COURT STAFF). (Entered: 05/14/2015)
Electronic filing error. Incorrect event used. Motion event required. Corrected by Clerk. re 203 Proposed Order, filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 5/14/2015) (Entered: 05/14/2015)
204 RESPONSE (re 203 Ex Parte Application ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 5/15/2015) Modified on 5/18/2015 (dtmS, COURT STAFF). (Entered: 05/15/2015)
205 Transcript of Proceedings held on April 29, 2015, before Judge William Alsup. Court Reporter Belle Ball, CSR, CRR, RDR, belle_ball@cand.uscourts.gov, telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 202 Transcript Order ) Release of Transcript Restriction set for 8/17/2015. (Related documents(s) 202 ) (Ball, Belle) (Filed on 5/18/2015) (Entered: 05/18/2015)
206 TRANSCRIPT ORDER by Victor Guerrero for Court Reporter Belle Ball. (Ho, Christopher) (Filed on 5/18/2015) (Entered: 05/18/2015)
207 NOTICE RE FRIDAY, JUNE 12. ACTION NEEDED BY 4:00 P.M. TODAY. Signed by Judge William Alsup on 5/20/2015. (whasec, COURT STAFF) (Filed on 5/20/2015) (Entered: 05/20/2015)
208 RESPONSE re [207} Order. by Suzanne Ambrose, Barbara Leashore, State Personnel Board (Gittisriboongul, Alvin) (Filed on 5/20/2015) Modified on 5/20/2015 (dtmS, COURT STAFF). (Entered: 05/20/2015)
209 ORDER RE JUNE 9 Bench Trial set for 6/9/2015 09:00 AM and then 6/15/2015 at 07:30 AM before Hon. William Alsup.. Signed by Judge Alsup on May 21, 2015. (whalc1, COURT STAFF) (Filed on 5/21/2015) (Entered: 05/21/2015)
Set/Reset Hearing Bench Trial set for 6/15/2015 07:30 AM 6/16/2015 07:30 AM 6/17/2015 07:30 AM 6/18/2015 07:30 AM before Hon. William Alsup. (dtS, COURT STAFF) (Filed on 5/21/2015) (Entered: 05/21/2015)
210 NOTICE AND ORDER RE LAW CLERKS PERSONAL RELATIONSHIP Objections due by 6/2/2015 Signed by Judge Alsup on May 29, 2015. (whalc1,

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 22 of 37

05/29/2015 05/29/2015 06/01/2015 06/02/2015 06/03/2015 06/05/2015 06/08/2015 06/08/2015 06/08/2015 06/09/2015 06/09/2015
06/09/2015
06/09/2015

COURT STAFF) (Filed on 5/29/2015) (Entered: 05/29/2015)
211 RESPONSE TO ORDER TO SHOW CAUSE by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp (Re LAW CLERK'S PERSONAL RELATIONSHIP). (Neri, Miguel) (Filed on 5/29/2015) (Entered: 05/29/2015)
212 RESPONSE to re 210 Order, Set Deadlines by Victor Guerrero. (Attachments: # 1 Declaration of Andrea Levien)(Chien, Marsha) (Filed on 5/29/2015) (Entered: 05/29/2015)
213 Response re 212 Response ( Non Motion ) Plaintiffs Supplemental Response to the Courts May 29, 2015 Order byVictor Guerrero. (Chien, Marsha) (Filed on 6/1/2015) (Entered: 06/01/2015)
214 REQUEST FOR UPDATE ON CDCR OBJECTION RE LAW CLERKS PERSONAL RELATIONSHIP 211 Signed by Judge Alsup on June 2, 2015. (whalc1, COURT STAFF) (Filed on 6/2/2015) (Entered: 06/02/2015)
215 OBJECTIONS to CDCR Defendants Update On Objection To Law Clerks Personal Relationship by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 6/3/2015) (Entered: 06/03/2015)
216 MOTION Administrative Relief filed by Victor Guerrero. Responses due by 6/19/2015. Replies due by 6/26/2015. (Attachments: # 1 Proposed Order Proposed Order Granting Plaintiff's Motion for Administrative Relief)(Chien, Marsha) (Filed on 6/5/2015) (Entered: 06/05/2015)
217 ORDER RE PLAINTIFFS ADMINISTRATIVE MOTION 203 .(whalc2, COURT STAFF) (Filed on 6/8/2015) (Entered: 06/08/2015)
218 ORDER GRANTING PLAINTIFF'S 216 MOTION FOR ADMINISTRATIVE RELIEF.(whalc2, COURT STAFF) (Filed on 6/8/2015) (Entered: 06/08/2015)
219 STATEMENT OF RECENT DECISION filed byVictor Guerrero. (Attachments: # 1 Exhibit Attachment A)(Chien, Marsha) (Filed on 6/8/2015) Modified on 6/9/2015 (dtmS, COURT STAFF). (Entered: 06/08/2015)
Electronic filing error. Incorrect event used. Correct event is Statement of Recent Decision. Corrected by Clerk's Office. No further action is necessary. Re: 219 Request for Judicial Notice filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 6/9/2015) (Entered: 06/09/2015)
220 Transcript of Proceedings Trial Transcript Volume 1 held on 6/9/2015, before Judge William Alsup. Court Reporters/Transcribers Lydia Zinn and Jo Ann Bryce, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order − Daily Trial ) Redacted Transcript Deadline set for 7/10/2015. Release of Transcript Restriction set for 9/8/2015. (Related documents(s) 149 ) (Zinn, Lydia) (Filed on 6/9/2015) (Additional attachment(s) added on 8/26/2015: # 1 Master Index − Trial Transcript) (djc, COURT STAFF). (Entered: 06/09/2015)
225 Minute Entry for proceedings held before Hon. William Alsup: Bench Trial held on 6/9/2015. Court Reporter Name Lydia Zinn; JoAnn Bryce. Plaintiff Attorney Marsha Chen; Christopher Ho. Defendant Attorney Miguel Neri; Fiel Tigno; Chris Young; Dorothy Egel; Alvin Gittis. Attachment minute order.(dtS, COURT STAFF) (Date Filed: 6/11/2015) Modified on 6/19/2015 (dt, COURT STAFF). (Entered: 06/11/2015)
226 Amended Minute Entry for proceedings held before Hon. William Alsup: Bench Trial held on 6/9/2015. Court Reporter Name Lydia Zinn; JoAnn Bryce. Plaintiff Attorney Marsha Chen; Christopher Ho. Defendant Attorney Miguel Neri; Fiel Tigno; Chris Young; Dorothy Egel; Alvin Gittis. Attachment minute order.(dtS,

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 23 of 37

06/10/2015 06/10/2015 06/10/2015 06/10/2015 06/12/2015 06/14/2015 06/15/2015 06/15/2015
06/16/2015 06/16/2015
06/16/2015

COURT STAFF) (Date Filed: 6/11/2015) Modified on 6/19/2015 (dt, COURT STAFF). (Entered: 06/11/2015)
221 (For Court Reporter Lydia Zinn.) ** TRANSCRIPT ORDER for Daily Trial by Victor Guerrero. (Ho, Christopher) (Filed on 6/10/2015) Modified on 6/10/2015 (djc, COURT STAFF). (Entered: 06/10/2015)
222 MOTION to Allow Trial Materials through Security. filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 6/10/2015) Modified on 6/10/2015 (dtmS, COURT STAFF). (Entered: 06/10/2015)
223 Proposed Order re 222 Motion to Allow Trial Materials by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 6/10/2015) Modified on 6/10/2015 (dtmS, COURT STAFF). (Entered: 06/10/2015)
224 ORDER GRANTINGDEFENDANTS MOTION FORADMINISTRATIVE RELIEF UNDERCIVIL LOCAL RULE 7−11 222 .(whalc2, COURT STAFF) (Filed on 6/10/2015) (Entered: 06/10/2015)
227 OBJECTIONS to Trial Testimony and Evidence of Plaintiff's Witness Kendall Welch by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 6/12/2015) (Entered: 06/12/2015)
228 RESPONSE to re 227 Objection, by Victor Guerrero. (Chien, Marsha) (Filed on 6/14/2015) (Entered: 06/14/2015)
229 Minute Entry for proceedings held before Hon. William Alsup: Bench Trial held on 6/15/2015. Witness called. Court Reporter Name JoAnn Bryce; Lydia Zinn. Plaintiff Attorney Marsha Chien; Christopher Ho. Defendant Attorney Drothy Egel; Chris Young; Fiel Tigno; Miguel Neri; Alvin Gittisriboongul. Attachment minute order.(dt, COURT STAFF) (Date Filed: 6/15/2015) (Entered: 06/15/2015)
230 Transcript of Proceedings, Trial Transcript Volume 2, held on 06/15/2015, before Judge William Alsup. Court Reporters/Transcribers Lydia Zinn and Jo Ann Bryce, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order − Daily Trial, 221 Transcript Order − Daily Trial ) Redacted Transcript Deadline set for 7/16/2015. Release of Transcript Restriction set for 9/14/2015. (Related documents(s) 149 , 221 ) (Zinn, Lydia) (Filed on 6/15/2015) (Entered: 06/15/2015)
231 Minute Entry for proceedings held before Hon. William Alsup: Bench Trial held on 6/16/2015. Witnesses calledCourt Reporter Name JoAnn Bryce; Lydia Zinn. Plaintiff Attorney Marsha Chien; Christopher Ho. Defendant Attorney Drothy Egel; Chris Young; Fiel Tigno; Miguel Neri; Alvin Gittisriboongul. Attachment minute order.(dt, COURT STAFF) (Date Filed: 6/16/2015) (Entered: 06/16/2015)
232 Transcript of Proceedings, Trial Transcript Volume 3, held on 06/16/2015, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn and Jo Ann Bryce, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order − Daily Trial, 221 Transcript Order − Daily Trial ) Redacted Transcript Deadline set for 7/17/2015. Release of Transcript Restriction set for 9/14/2015. (Related documents(s) 149 , 221 ) (Zinn, Lydia) (Filed on 6/16/2015) (Entered: 06/16/2015)
233 MOTION in Limine filed by Victor Guerrero. Motion Hearing set for 6/17/2015 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 24 of 37

06/17/2015 06/17/2015
06/18/2015 06/18/2015
06/18/2015 06/19/2015
06/19/2015

due by 6/30/2015. Replies due by 7/7/2015. (Attachments: # 1 Exhibit A−C)(Chien, Marsha) (Filed on 6/16/2015) (Entered: 06/16/2015)
234 Minute Entry for proceedings held before Hon. William Alsup: Bench Trial held on 6/17/2015. Witnesses called. Plaintiff REST. Further Bench Trial set for 6/18/2015, 6/19/2015 07:30 AM before Hon. William Alsup. Court Reporter Name JoAnn Bryce; Lydia Zinn. Plaintiff Attorney Marsha Chien; Christopher Ho. Defendant Attorney Dorothy Egel; Chris Young; Fiel Tigno; Miguel Neri; Alvin Gittisriboongul. Attachment minute order.(dt, COURT STAFF) (Date Filed: 6/17/2015) (Entered: 06/17/2015)
235 Transcript of Proceedings, Trial Transcript Volume 4, held on 06/17/2015, before Judge William Alsup. Court Reporters/Transcribers Lydia Zinn and Jo Ann Bryce, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order − Daily Trial, 221 Transcript Order − Daily Trial ) Redacted Transcript Deadline set for 7/20/2015. Release of Transcript Restriction set for 9/15/2015. (Related documents(s) 149 , 221 ) (Zinn, Lydia) (Filed on 6/17/2015) (Entered: 06/17/2015)
236 RESPONSE (re 233 MOTION in Limine ) to Exclude Exhibit 371B and Request for Judicial Notice filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit 1)(Neri, Miguel) (Filed on 6/18/2015) (Entered: 06/18/2015)
237 Transcript of Proceedings, Trial Transcript Volume 5, held on 6/18/2015, before Judge William Alsup. Court Reporters/Transcribers Lydia Zinn and Jo Ann Bryce, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order − Daily Trial, 221 Transcript Order − Daily Trial ) Redacted Transcript Deadline set for 7/20/2015. Release of Transcript Restriction set for 9/16/2015. (Related documents(s) 149 , 221 ) (Zinn, Lydia) (Filed on 6/18/2015) (Entered: 06/18/2015)
239 Minute Entry for proceedings held before Hon. William Alsup: Bench Trial held on 6/18/2015. Witnesses called. Further Trial set for 6/19/2015 7:30 AM. Court Reporter Name JoAnn Bryce; Lydia Zinn. Plaintiff Attorney Marsha Chien; Christopher Ho. Defendant Attorney Dorothy Egel; Chris Young; Fiel Tigno; Miguel Neri; Alvin Gittisriboongul. Attachment minute order.(dt, COURT STAFF) (Date Filed: 6/18/2015) (Entered: 06/19/2015)
238 Transcript of Proceedings, Trial Transcript Volume 6, held on 6/19/2015, before Judge William Alsup. Court Reporters/Transcribers Lydia Zinn and Jo Ann Bryce, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order − Daily Trial, 221 Transcript Order − Daily Trial ) Redacted Transcript Deadline set for 7/20/2015. Release of Transcript Restriction set for 9/17/2015. (Related documents(s) 149 , 221 ) (Zinn, Lydia) (Filed on 6/19/2015) (Entered: 06/19/2015)
240 Minute Entry for proceedings held before Hon. William Alsup: Bench Trial completed on 6/19/2015. Witnesses called. Defendants' REST. Closing arguments made. Court Reporter Name JoAnn Bryce; Lydia Zinn. Plaintiff Attorney Marsha Chien; Christopher Ho. Defendant Attorney Dorothy Egel; Chris Young; Fiel Tigno; Miguel Neri; Alvin Gittisriboongul. Attachment minute order.(dt, COURT STAFF) (Date Filed: 6/19/2015) (Entered: 06/19/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 25 of 37

06/19/2015 06/22/2015 06/23/2015
06/23/2015 06/23/2015
06/24/2015 06/26/2015
06/26/2015 06/26/2015 06/29/2015 07/07/2015 07/13/2015 07/13/2015 07/13/2015 07/13/2015
07/13/2015
07/14/2015

241 Exhibit List of exhibits received into evidence during bench trial from 6/9/15 to 6/19/15. (dt, COURT STAFF) (Filed on 6/19/2015) (Entered: 06/19/2015)
242 ORDER REGARDING FORMAT OF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER BENCH TRIAL. Signed by Judge Alsup on 6/22/2015. (whalc2, COURT STAFF) (Filed on 6/22/2015) (Entered: 06/22/2015)
243 Error, See 244 STIPULATION WITH PROPOSED ORDER Re Error on Deposition Read−In filed by Victor Guerrero. (Attachments: # 1 Declaration Elizabeth Fulton, # 2 Exhibit A − C)(Chien, Marsha) (Filed on 6/23/2015) Modified on 6/24/2015 (dtmS, COURT STAFF). (Entered: 06/23/2015)
Electronic filing error. E−filer's Attestation Required Pursuant to Local Rule 5−1(i) Re: 243 STIPULATION WITH PROPOSED ORDER filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 6/23/2015) (Entered: 06/23/2015)
244 Corrected STIPULATION WITH PROPOSED ORDER Re Error on Deposition Read−In Amended filed by Victor Guerrero. (Attachments: # 1 Declaration Elizabeth Fulton, # 2 Exhibit A − C)(Chien, Marsha) (Filed on 6/23/2015) Modified on 6/24/2015 (dtmS, COURT STAFF). (Entered: 06/23/2015)
245 ORDER RE INCOMPLETE EVIDENCE. Signed by Judge Alsup on 6/24/2015. (whalc2, COURT STAFF) (Filed on 6/24/2015) (Entered: 06/24/2015)
246 Proposed Findings of Fact by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp (and Conclusions of Law After Bench Trial). (Neri, Miguel) (Filed on 6/26/2015) (Entered: 06/26/2015)
247 Proposed Findings of Fact by Victor Guerrero and Conclusions of Law After Bench Trial. (Chien, Marsha) (Filed on 6/26/2015) (Entered: 06/26/2015)
248 Proposed Findings of Fact by Suzanne Ambrose, Barbara Leashore, State Personnel Board [SPB's Final Proposed Findings of Fact and Conclusions of Law]. (Egel, Dorothy) (Filed on 6/26/2015) (Entered: 06/26/2015)
249 STIPULATION AND ORDER RE ERROR ON DEPOSITIONREAD−IN 244 .(whalc2, COURT STAFF) (Filed on 6/29/2015) (Entered: 06/29/2015)
250 REQUEST FOR MORE BRIEFING. Signed by Judge Alsup on 7/7/2015. (whalc2, COURT STAFF) (Filed on 7/7/2015) (Entered: 07/07/2015)
251 Response re 246 Proposed Findings of Fact byVictor Guerrero. (Chien, Marsha) (Filed on 7/13/2015) (Entered: 07/13/2015)
252 Response re 248 Proposed Findings of Fact byVictor Guerrero. (Chien, Marsha) (Filed on 7/13/2015) (Entered: 07/13/2015)
253 RESPONSE re 247 Proposed Findings of Fact and Conclusion of Law. by Suzanne Ambrose, Barbara Leashore, State Personnel Board (Egel, Dorothy) (Filed on 7/13/2015) Modified on 7/13/2015 (dtmS, COURT STAFF). (Entered: 07/13/2015)
254 RESPONSE to re 247 Proposed Findings of Fact and Conclusions of Law After Bench Trial by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 7/13/2015) (Entered: 07/13/2015)
Electronic filing error. Incorrect event used. Correct event is Response (Non Motion); Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 253 Proposed Findings of Fact filed by Suzanne Ambrose (dtmS, COURT STAFF) (Filed on 7/13/2015) (Entered: 07/13/2015)
255 REQUEST to File Missing Trial Briefs by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit A − C)(Neri, Miguel) (Filed on 7/14/2015) Modified on 7/15/2015 (dtmS, COURT STAFF). Modified on 7/15/2015 (dtmS, COURT STAFF). (Entered: 07/14/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 26 of 37

07/15/2015 07/15/2015 07/15/2015 07/16/2015 07/17/2015 07/17/2015 07/17/2015 07/17/2015
07/21/2015 07/21/2015 07/21/2015 08/07/2015 08/07/2015 08/18/2015
08/27/2015 09/10/2015

256 MOTION to File Missing Trial Briefs by Victor Guerrero. (Attachments: # 1 Exhibit D−H ISO Administrative Motion to File Missing Trial Briefs)(Chien, Marsha) (Filed on 7/15/2015) Modified on 7/15/2015 (dtmS, COURT STAFF). (Entered: 07/15/2015)
Electronic filing error. Proposed Orders Required. Re: 255 Request; 256 Motion filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 7/15/2015) (Entered: 07/15/2015)
257 Proposed Order re 256 Ex Parte Application Administrative Motion to File Missing Trial Briefs by Victor Guerrero. (Chien, Marsha) (Filed on 7/15/2015) (Entered: 07/15/2015)
258 Proposed Order re 255 Ex Parte Application to File Missing Trial Briefs by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 7/16/2015) (Entered: 07/16/2015)
259 ORDER GRANTING 256 PLAINTIFFS ADMINISTRATIVE MOTION TO FILE MISSING TRIAL BRIEFS.(whalc2, COURT STAFF) (Filed on 7/17/2015) (Entered: 07/17/2015)
260 ORDER GRANTING 255 DEFENDANT CDCRS REQUEST TOFILE MISSING TRIAL BRIEFS.(whalc2, COURT STAFF) (Filed on 7/17/2015) (Entered: 07/17/2015)
261 First MOTION TO REDACT CERTAIN EXHIBITS CONTAINING MR. GUERREROS PERSONAL INFORMATION AND [PROPOSED] ORDER filed by Victor Guerrero. Responses due by 7/31/2015. Replies due by 8/7/2015. (Chien, Marsha) (Filed on 7/17/2015) (Entered: 07/17/2015)
262 RESPONSE (re 261 First MOTION TO REDACT CERTAIN EXHIBITS CONTAINING MR. GUERREROS PERSONAL INFORMATION AND [PROPOSED] ORDER ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit)(Neri, Miguel) (Filed on 7/17/2015) (Entered: 07/17/2015)
263 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Alsup on 7/21/2015. (whalc2, COURT STAFF) (Filed on 7/21/2015) (Entered: 07/21/2015)
Set/Reset Hearing Motion Hearing set for 9/24/2015 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 7/21/2015) (Entered: 07/21/2015)
264 Order Setting Settlement Conference: Settlement Conference set for 8/18/2015 11:00 AM before Magistrate Judge Donna M. Ryu. Signed by Magistrate Judge Donna M. Ryu on 7/21/15. (ig, COURT STAFF) (Filed on 7/21/2015) (Entered: 07/21/2015)
265 Trial Exhibit Location. (dtmS, COURT STAFF) (Filed on 8/7/2015) (Entered: 08/07/2015)
266 NOTICE by Victor Guerrero NOTICE OF WITHDRAWAL AS COUNSEL OF RECORD (Chien, Marsha) (Filed on 8/7/2015) (Entered: 08/07/2015)
267 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Settlement Conference held on 8/18/2015. Matter did not settle, and further settlement proceedings are not anticipated. Parties are invited to call Judge Ryu for further assistance. FTR Time Not Recorded. Attachment Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 8/18/2015) (Entered: 08/18/2015)
268 Brief Summarizing Relief Requested filed byVictor Guerrero. (Attachments: # 1 Declaration of Chris Ho, # 2 Exhibit A−F ISO Plaintiff's Brief Summarizing Relief Requested)(Ho, Christopher) (Filed on 8/27/2015) (Entered: 08/27/2015)
269 REVISED ADMINISTRATIVE MOTION to Redact Certain Exhibits Containing Plaintiff's Personal Information; Proposed Order. by Victor Guerrero. (Ho, Christopher) (Filed on 9/10/2015) Modified on 9/10/2015 (dtmS, COURT STAFF).

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 27 of 37

09/10/2015 09/10/2015 09/15/2015 09/17/2015 09/24/2015
09/25/2015 09/25/2015 09/28/2015 09/28/2015 09/28/2015 09/29/2015 09/30/2015 10/06/2015
10/06/2015

(Entered: 09/10/2015)
270 RESPONSE to re 268 Brief [SPB's Response to Plt's Brief Summarizing Relief Requested] by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 9/10/2015) (Entered: 09/10/2015)
271 RESPONSE to re 268 Brief Summarizing Relied Requested; Request for Stay of Judgment Pending Appeal by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 9/10/2015) (Entered: 09/10/2015)
272 RESPONSE (re 269 MOTION to Redact, 261 MOTION to Redact ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 9/15/2015) Modified on 9/15/2015 (dtmS, COURT STAFF). (Entered: 09/15/2015)
273 REPLY re 269 Revised Motion to Redact by Victor Guerrero. (Ho, Christopher) (Filed on 9/17/2015) Modified on 9/17/2015 (dtmS, COURT STAFF). (Entered: 09/17/2015)
274 Minute Entry for proceedings held before Hon. William Alsup: Motion Hearing held on 9/24/2015. Plaintiff's Request for Relief − Injunctive Relief; Declaratory Relief; Back Pay; Front Pay in Lieu of Reinstatement; Attorneys' Fees and Costs. Defendant CDCR's Request for Stay of Judgment Pending Appeal. Court Reporter Name Rhonda Aquilina (20 minutes). Plaintiff Attorney Christopher Ho. Defendant Attorney Miguel Neri (CDCR); Dorothy Egel (State Personnel Board). Attachment Civil Minutes.(tlS, COURT STAFF) (Date Filed: 9/24/2015) (Entered: 09/24/2015)
275 Notice re Reinstatement of Plaintiff in Anticipation of the Court's Relief Order by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 9/25/2015) Modified on 9/25/2015 (dtmS, COURT STAFF). (Entered: 09/25/2015)
Electronic filing error. Incorrect event used. Correct event is Notice.Corrected by Clerk's Office. No further action is necessary. Re: 275 Proposed Order, filed by V Myers (dtmS, COURT STAFF) (Filed on 9/25/2015) (Entered: 09/25/2015)
276 ORDER RE ADMINISTRATIVE MOTIONS TO REDACT TRIAL RECORD. Signed by Judge Alsup on 9/28/2015. (whalc2, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/28/2015)
277 ORDER RE RELIEF. Signed by Judge Alsup on 9/28/2015. (whalc2, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/28/2015)
278 JUDGMENT. Signed by Judge Alsup on 9/28/2015. (whalc2, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/28/2015)
279 First MOTION for Extension of Time to File ATTORNEYS FEES AND BILL OF COSTS filed by Victor Guerrero. (Attachments: # 1 Declaration of Christopher Ho)(Ho, Christopher) (Filed on 9/29/2015) (Entered: 09/29/2015)
280 ORDER GRANTING 279 STIPULATION ENLARGING TIME FOR SUBMISSION OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND BILL OF COSTS.(whalc2, COURT STAFF) (Filed on 9/30/2015) (Entered: 09/30/2015)
281 Error, See 282 First NOTICE OF APPEAL to the Federal Circuit as to 278 Judgment by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Filing fee $ 505, receipt number 0971−9892958. District Court Appeal Record due by 11/5/2015. (Neri, Miguel) (Filed on 10/6/2015) Modified on 10/6/2015 (dtmS, COURT STAFF). (Entered: 10/06/2015)
Electronic filing error. Incorrect event used. Correct event is NOTICE OF APPEAL. Please re−file in its entirety. Re: 281 Notice of Appeal to the Federal Circuit, filed by V Myers (dtmS, COURT STAFF) (Filed on 10/6/2015) (Entered: 10/06/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 28 of 37

10/06/2015 10/07/2015 10/07/2015 10/07/2015 10/08/2015 10/12/2015 10/12/2015 10/16/2015 10/26/2015 10/26/2015 10/28/2015
10/30/2015 10/30/2015

282 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Appeal of Judgment 278 (Pay.gov Agency Tracking ID 25NOTGKA.) and REPRESENTATION STATEMENT (Neri, Miguel) (Filed on 10/6/2015) (Entered: 10/06/2015)
283 STIPULATION AND [PROPOSED] ORDER CONCERNING REDACTION OF TRIAL EXHIBITS ADMITTED INTO EVIDENCE filed by Victor Guerrero. (Ho, Christopher) (Filed on 10/7/2015) Modified on 10/7/2015 (dtmS, COURT STAFF). (Entered: 10/07/2015)
Electronic filing error. Incorrect event used. Correct event is STIPULATION with Proposed Order. Corrected by Clerk's Office. No further action is necessary. Re: 283 First MOTION filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 10/7/2015) (Entered: 10/07/2015)
284 USCA Case Number 15−17001, for 282 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll. (dtmS, COURT STAFF) (Filed on 10/7/2015) (Entered: 10/07/2015)
285 ORDER GRANTING 283 STIPULATION CONCERNING REDACTIONOF TRIAL EXHIBITS ADMITTED INTOEVIDENCE.(whalc2, COURT STAFF) (Filed on 10/8/2015) (Entered: 10/08/2015)
286 Amended Representation Statement filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Neri, Miguel) (Filed on 10/12/2015) (Entered: 10/12/2015)
287 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Appeal of Judgment 278 ; (Appeal Fee of $505.00 receipt number 0971−9906955 paid.); −−[State Personnel Board's Notice of Appeal and Representation Statement] (Egel, Dorothy) (Filed on 10/12/2015) (Entered: 10/12/2015)
288 USCA Case Number 15−17043 for 287 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (dtmS, COURT STAFF) (Filed on 10/16/2015) (Entered: 10/16/2015)
289 TRANSCRIPT ORDER by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp for Court Reporter Lydia Zinn. (Neri, Miguel) (Filed on 10/26/2015) (Entered: 10/26/2015)
290 TRANSCRIPT ORDER by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp for Court Reporter Rhonda Aquilina. (Neri, Miguel) (Filed on 10/26/2015) (Entered: 10/26/2015)
291 Transcript of Proceedings held on 04/14/2015, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 289 Transcript Order ) Redacted Transcript Deadline set for 11/30/2015. Release of Transcript Restriction set for 1/26/2016. (Related documents(s) 289 ) (Zinn, Lydia) (Filed on 10/28/2015) (Entered: 10/28/2015)
292 Transcript Designation Form for proceedings held on 4/14/15; 6/9/15; 6/15/15; 6/16/15; 6/17/15; 6/18/15; 6/19/15; 9/24/15 before Judge Alsup, re 284 USCA Case Number, 282 Notice of Appeal, Transcript due by 11/5/2015. (Neri, Miguel) (Filed on 10/30/2015) (Entered: 10/30/2015)
293 MOTION SUBSTITUTE REDACTED TRIAL EXHIBITS 174−221, 223−224, 371, 371A, 371B, 371C, 371E, 372, 373, AND 380 FOR ORIGINAL EXHIBITS; MOTION TO SEAL ORIGINAL EXHIBITS filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol,

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 29 of 37

10/30/2015 10/30/2015 10/30/2015
10/30/2015 10/30/2015 10/30/2015 10/30/2015 10/30/2015
10/31/2015 10/31/2015 10/31/2015 10/31/2015 11/02/2015 11/04/2015

V Myers, D Sharp. Responses due by 11/3/2015. (Attachments: # 1 Declaration DECLARATION OF CHRISTOPHER M. YOUNG SUPPORTING CDCR DEFENDANTS' ADMINISTRATIVE MOTIOIN TO SUBSTITUTE REDACTED TRIAL EXHIBITS 174−221, 223−224, 371, 371A, 371B, 371C, 371E, 372, 373, AND 380; AND TO SEAL ORIGINAL TRIAL EXHIBITS, # 2 Proposed Order [PROPOSED] ORDER SUBSTITUTING REDACTED VERSIONS OF TRIAL EXHIBITS 174−221, 223−224, 371, 371A, 371B, 371C, 371E, 372, 373, AND 380; ORDER SEALING ORIGINAL TRIAL EXHIBITS 174−221, 223−224, 371, 371A, 371B, 371C, 371E, 372, 373, AND 380)(Young, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
294 ASSOCIATION of Counsel Richard M. Pearl by Victor Guerrero. (Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
295 BILL OF COSTS by Victor Guerrero. Objections due by 11/13/2015 (Attachments: # 1 Attachment to Bill of Cost, # 2 Exhibit Exhibits A− C to Cost)(Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
296 MOTION for Attorney Fees filed by Victor Guerrero. Responses due by 11/13/2015. Replies due by 11/20/2015. (Attachments: # 1 Exhibit A−B of motion, # 2 Declaration C. Ho, # 3 Exhibit A of C. Ho Dec, # 4 Exhibit B of C. Ho Dec, # 5 Proposed Order)(Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
297 Declaration of Richard M. Pearl in Support of 296 MOTION for Attorney Fees filed byVictor Guerrero. (Attachments: # 1 Exhibit A−F)(Related document(s) 296 ) (Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
298 Declaration of James M. Finberg in Support of 296 MOTION for Attorney Fees filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
299 Declaration of Jack Lee in Support of 296 MOTION for Attorney Fees filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
300 EXHIBITS re 296 MOTION for Attorney Fees Exhibit C to Ho Declaration filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/30/2015)
301 EXHIBITS re 296 MOTION for Attorney Fees Exhibit D to C. Ho filed byVictor Guerrero. (Attachments: # 1 Exhibit D−1, # 2 Exhibit D−2, # 3 Exhibit D−3, # 4 Exhibit D−4, # 5 Exhibit D−5, # 6 Exhibit D−6, # 7 Exhibit D−7, # 8 Exhibit D−8, # 9 Exhibit D−9, # 10 Exhibit D−10, # 11 Exhibit D−11)(Related document(s) 296 ) (Ho, Christopher) (Filed on 10/30/2015) (Entered: 10/31/2015)
302 EXHIBITS re 296 MOTION for Attorney Fees Exhibit E to Ho Declaration filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/31/2015) (Entered: 10/31/2015)
303 EXHIBITS re 296 MOTION for Attorney Fees F to C. Ho filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/31/2015) (Entered: 10/31/2015)
304 EXHIBITS re 296 MOTION for Attorney Fees Exhibit G to C. Ho filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/31/2015) (Entered: 10/31/2015)
305 EXHIBITS re 296 MOTION for Attorney Fees Exhibit H to C. Ho filed byVictor Guerrero. (Related document(s) 296 ) (Ho, Christopher) (Filed on 10/31/2015) (Entered: 10/31/2015)
Set/Reset Deadlines as to 296 MOTION for Attorney Fees . Motion Hearing set for 12/17/2015 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dtmS, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/02/2015)
306 ORDER GRANTING 293 ADMINISTRATIVE MOTION.(whalc2, COURT STAFF) (Filed on 11/4/2015) (Entered: 11/04/2015)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 30 of 37

11/04/2015
11/05/2015 11/18/2015 11/19/2015 11/20/2015 11/20/2015
11/20/2015 11/23/2015 12/11/2015 12/11/2015
12/14/2015 12/15/2015
12/17/2015 12/28/2015

307 Transcript of Proceedings held on 09/24/2015, before Judge William H. Alsup. Court Reporter Rhonda Aquilina, telephone number 415−264−0580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 290 Transcript Order ) Release of Transcript Restriction set for 2/2/2016. (Related documents(s) 290 ) (Aquilina, Rhonda) (Filed on 11/4/2015) (Entered: 11/04/2015)
CORRECTED Deadlines as to 296 MOTION for Attorney Fees . Responses due by 11/20/2015. Replies due by 12/3/2015. (dtmS, COURT STAFF) (Filed on 11/5/2015) (Entered: 11/05/2015)
308 ERRATA re 295 Bill of Costs by Victor Guerrero. (Ho, Christopher) (Filed on 11/18/2015) (Entered: 11/18/2015)
309 ERRATA re 296 MOTION for Attorney Fees and Expenses (Dkt. No. 296−2) by Victor Guerrero. (Ho, Christopher) (Filed on 11/19/2015) (Entered: 11/19/2015)
310 RESPONSE (re 296 MOTION for Attorney Fees ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 11/20/2015) Modified on 11/23/2015 (dtmS, COURT STAFF). (Entered: 11/20/2015)
311 DECLARATION of Christopher M. Young in Support of 310 Opposition/Response to Motion, filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit)(Related document(s) 310 ) (Young, Christopher) (Filed on 11/20/2015) Modified on 11/23/2015 (dtmS, COURT STAFF). (Entered: 11/20/2015)
312 RESPONSE (re 296 MOTION for Attorney Fees ) filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 11/20/2015) Modified on 11/23/2015 (dtmS, COURT STAFF). (Entered: 11/20/2015)
313 ORDER RE ATTORNEY'S FEES AND COSTS. Signed by Judge Alsup on 11/23/2015. (whalc2, COURT STAFF) (Filed on 11/23/2015) (Entered: 11/23/2015)
314 Costs Taxed in amount of $20,569.01, Re: ECF No. 295, against California Department of Corrections and Rehabilitation; State Personnel Board, et al. (lsS, COURT STAFF) (Filed on 12/11/2015) (Entered: 12/11/2015)
315 Supplemental Declaration of Christopher Ho in Support re 296 Motion for Attorney Fees. filed byVictor Guerrero. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Ho, Christopher) (Filed on 12/11/2015) Modified on 12/14/2015 (dtmS, COURT STAFF). (Entered: 12/11/2015)
Electronic filing error. Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 315 Declaration in Support, filed by Victor Guerrero (dtmS, COURT STAFF) (Filed on 12/14/2015) (Entered: 12/14/2015)
316 ERRATA re 315 Declaration in Support, < by Victor Guerrero. (Attachments: # 1SUPPLEMENTAL DECLARATION OF CHRISTOPHERHO , # 2 SUPPLEMENTAL DECLARATION OF CHRISTOPHER HO WITHOUT REDLINES)(Ho, Christopher) (Filed on 12/15/2015) Modified on 12/16/2015 (dtmS, COURT STAFF). (Entered: 12/15/2015)
317 ERRATA re 316 Errata, FURTHER ERRATA TO SUPPLEMENTAL DECLARATION OF CHRISTOPHER HO IN SUPPORT OF MOTION FOR AWARD OF REASONABLE ATTORNEYS FEES AND EXPENSES by Victor Guerrero. (Ho, Christopher) (Filed on 12/17/2015) (Entered: 12/17/2015)
318 RESPONSE (re 315 316 Supplemental Declarations) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 12/28/2015) Modified on

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 31 of 37

12/28/2015
12/28/2015
12/29/2015 12/29/2015 12/29/2015 01/08/2016 01/08/2016
01/28/2016 02/04/2016 02/04/2016 02/04/2016 02/10/2016 02/10/2016 02/22/2016

12/29/2015 (dtmS, COURT STAFF). (Entered: 12/28/2015)
319 DECLARATION of Christopher Young in Support re 318 Response filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Attachments: # 1 Exhibit Exhibit A Part 1, # 2 Exhibit Exhibit A Part 2, # 3 Exhibit Exhiibit A Part 3, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D, # 7 Exhibit Exhibit E, # 8 Exhibit Exhibit F)(Related document(s) 318 ) (Young, Christopher) (Filed on 12/28/2015) Modified on 12/29/2015 (dtmS, COURT STAFF). (Entered: 12/28/2015)
320 DECLARATION of Dorothy Egel in Support re 312 Response/Opposition filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Related document(s) 315 ) (Egel, Dorothy) (Filed on 12/28/2015) Modified on 12/29/2015 (dtmS, COURT STAFF). (Entered: 12/28/2015)
Electronic filing error. Incorrect event used. Correct event is RESPONSE (Non−Motion); Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 318 Opposition/Response to Motion, filed by V Myers (dtmS, COURT STAFF) (Filed on 12/29/2015) (Entered: 12/29/2015)
Electronic filing error. Incorrect event used. Correct event is Declaration in Support. Corrected by Clerk's Office. No further action is necessary. Re: 319 Declaration in Opposition,, filed by V Myers (dtmS, COURT STAFF) (Filed on 12/29/2015) (Entered: 12/29/2015)
Electronic filing error. Incorrect event used. Correct event is Declaration in Support. Corrected by Clerk's Office. No further action is necessary. Re: 320 Declaration in Opposition, filed by Suzanne Ambrose (dtmS, COURT STAFF) (Filed on 12/29/2015) (Entered: 12/29/2015)
321 Declaration of Christopher Ho in Response re 313 Order filed byVictor Guerrero. (Related document(s) 313 ) (Ho, Christopher) (Filed on 1/8/2016) Modified on 1/8/2016 (dtmS, COURT STAFF). (Entered: 01/08/2016)
322 STATUS REPORT JOINT STATUS REPORT REGARDING SPECIAL MASTER ON PLAINTIFF'S MOTION FOR ATTORNEY FEES (DOC. #313) by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 1/8/2016) (Entered: 01/08/2016)
323 ORDER APPOINTING ATTORNEY MATTHEW BORDEN AS SPECIAL MASTER. Signed by Judge Alsup on 1/28/2016. (whalc2, COURT STAFF) (Filed on 1/28/2016) (Entered: 01/28/2016)
324 OBJECTIONS to 323 Order Appointing Special Master by California Department of Corrections and Rehabilitation. (Aguilar, Jorge) (Filed on 2/4/2016) Modified on 2/4/2016 (dtmS, COURT STAFF). (Entered: 02/04/2016)
325 JOINDER re 324 Objection by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 2/4/2016) Modified on 2/4/2016 (dtmS, COURT STAFF). (Entered: 02/04/2016)
Electronic filing error. Incorrect event used. Correct event is JOINDER.Corrected by Clerk's Office. No further action is necessary. Re: 325 Objection filed by Suzanne Ambrose (dtmS, COURT STAFF) (Filed on 2/4/2016) (Entered: 02/04/2016)
326 ORDER APPOINTING ATTORNEY CHRISTINA CHEN AS SPECIAL MASTER Responses due by 2/17/2016.. Signed by Judge Alsup on 2/10/2016. (whalc2, COURT STAFF) (Filed on 2/10/2016) (Entered: 02/10/2016)
327 ORDER RE SPECIAL MASTER. Signed by Judge Alsup on 2/10/2016. (whalc2, COURT STAFF) (Filed on 2/10/2016) (Entered: 02/10/2016)
328 ORDER APPOINTING ATTORNEY CHRISTINA CHEN AS SPECIAL MASTER AND SETTING SCHEDULE FOR REPORT AND RECOMMENDATION. Signed by Judge Alsup on 2/22/2016. (whalc2, COURT

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 32 of 37

02/25/2016 03/10/2016 03/24/2016 03/24/2016 03/24/2016 03/24/2016 03/24/2016 03/24/2016 03/24/2016 03/24/2016 03/25/2016
03/25/2016 03/25/2016
03/25/2016

STAFF) (Filed on 2/22/2016) (Entered: 02/22/2016)
329 Declaration of Christina Chen in Support of 328 Order Appointing Christina Chen as Special Master and Setting Schedule for Report and Recommendation filed byChristina Pei−Lin Chen. (Related document(s) 328 ) (Chen, Christina) (Filed on 2/25/2016) (Entered: 02/25/2016)
330 Special Masters Order Regarding Authorities Cited. (Chen, Christina) (Filed on 3/10/2016) (Entered: 03/10/2016)
331 TRANSCRIPT ORDER for proceedings held on 09/24/2015 before Hon. William Alsup by Victor Guerrero, for Court Reporter Rhonda Aquilina. (Ho, Christopher) (Filed on 3/24/2016) (Entered: 03/24/2016)
332 Error, See 341 MOTION to Enforce Judgment (Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
333 Error, See 341 MOTION to Enforce Judgment (Attachments: # 1 Exhibit A−B)(Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
334 Error, See 341 MOTION to Enforce Judgment (Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
335 Error, See 341 MOTION to Enforce Judgment (Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
336 Error, See 342 MOTION to Shorten Time (Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
337 Error, See 342 MOTION to Shorten Time (Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
338 Error, See 342 MOTION to Shorten Time filed by Victor Guerrero. (Ho, Christopher) (Filed on 3/24/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/24/2016)
339 RESPONSE (re 341 MOTION to Enforce Judgment ) filed byJeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 3/25/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/25/2016)
340 REPLY (re 341 MOTION to Enforce Judgment ) filed byVictor Guerrero. (Ho, Christopher) (Filed on 3/25/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/25/2016)
341 MOTION to Enforce Judgment and Request for Contempt Sanctions against Defendant or in the alternative, Request for Order to Show Cause filed by Victor Guerrero. Motion Hearing set for 4/28/2016 08:00 AM before Hon. William Alsup. Responses due by 4/8/2016. Replies due by 4/15/2016. (Attachments: # 1 Declaration of Christopher Ho, # 2 Exhibit A−B ISO DECLARATION OF CHRISTOPHER HO , # 3 Proposed Order Motion for Contempt, # 4 Proposed Order for OSC)(Ho, Christopher) (Filed on 3/25/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/25/2016)
342 MOTION to Shorten Time for Hearing re 341 Motion to Enforce Judgment filed by Victor Guerrero. (Attachments: # 1 Declaration of Christopher Ho in Support, # 2 Proposed Order) (Ho, Christopher) (Filed on 3/25/2016) Modified on 3/25/2016 (dtmS, COURT STAFF). (Entered: 03/25/2016)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 33 of 37

03/28/2016 03/28/2016 03/29/2016 03/29/2016 03/30/2016 03/30/2016 03/30/2016 04/11/2016 04/12/2016
04/20/2016 04/20/2016 04/20/2016 04/29/2016 05/05/2016 05/12/2016
05/12/2016

343 RESPONSE (re 342 MOTION to Shorten Time ) filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 3/28/2016) Modified on 3/29/2016 (dtmS, COURT STAFF). (Entered: 03/28/2016)
344 DECLARATION of Christopher Young in Support re 343 Response/Opposition filed by Jeffrey Beard, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. (Young, Christopher) (Filed on 3/28/2016) Modified on 3/29/2016 (dtmS, COURT STAFF). (Entered: 03/28/2016)
Electronic filing error. Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 344 Declaration in Opposition, filed by V Myers (dtmS, COURT STAFF) (Filed on 3/29/2016) (Entered: 03/29/2016)
345 NOTICE of Appearance by Stacy Villalobos NOTICE OF APPEARANCE OF COUNSEL (Villalobos, Stacy) (Filed on 3/29/2016) (Entered: 03/29/2016)
346 Special Masters Order Regarding Summaries and Awards. (Chen, Christina) (Filed on 3/30/2016) (Entered: 03/30/2016)
347 ORDER DENYING MOTION TO SHORTEN TIME; VACATING HEARING ON MOTION FOR CONTEMPT 342 .(whalc2, COURT STAFF) (Filed on 3/30/2016) (Entered: 03/30/2016)
. Signed by Judge Alsup on 3/30/2016. (whalc2, COURT STAFF) (Filed on 3/30/2016) (Entered: 03/30/2016)
348 ORDER RE 341 MOTION TO ENFORCE JUDGMENT AND MOTION FOR CONTEMPT.(whalc2, COURT STAFF) (Filed on 4/11/2016) (Entered: 04/11/2016)
349 ORDER of USCA Cases 15−17001, 15−17043 as to 282 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll, 287 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board (dtmS, COURT STAFF) (Filed on 4/12/2016) (Entered: 04/12/2016)
350 OBJECTIONS to 346 Special Master's Order by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp, State Personnel Board. (Young, Christopher) (Filed on 4/20/2016) Modified on 4/20/2016 (dtmS, COURT STAFF). (Entered: 04/20/2016)
Electronic filing error. Document not properly linked. Corrected by Clerk's Office. No further action is necessary. Re: 350 Objection, filed by V Myers (dtmS, COURT STAFF) (Filed on 4/20/2016) (Entered: 04/20/2016)
351 Amended OBJECTIONS to re 346 Special Masters Order by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp, State Personnel Board. (Young, Christopher) (Filed on 4/20/2016) Modified on 4/21/2016 (dtmS, COURT STAFF). (Entered: 04/20/2016)
352 Special Masters Order Report and Recommendation re Plaintiff's Motion for Attorney's Fees and Expenses. (Attachments: # 1 Exhibit 1 on Plaintiff's Master Summary Chart, # 2 Exhibit 2 on Plaintiff's Mini−Summary Charts)(Chen, Christina) (Filed on 4/29/2016) (Entered: 04/29/2016)
353 Statement re 352 Special Masters Order, Statement Re Hours Billed and Proposed Expense Allocation by Christina Pei−Lin Chen. (Chen, Christina) (Filed on 5/5/2016) (Entered: 05/05/2016)
354 MOTION MODIFY/ADOPT THE SPECIAL MASTER'S RECOMMENDATONS filed by California Department of Corrections and Rehabilitation. Motion Hearing set for 6/16/2016 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 5/26/2016. Replies due by 6/2/2016. (Young, Christopher) (Filed on 5/12/2016) (Entered: 05/12/2016)
355 OBJECTIONS to re 352 Special Masters Order, Report and Recommendation re Plt's Motion for Attys Fees and Expenses by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 5/12/2016) (Entered: 05/12/2016)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 34 of 37

05/12/2016 05/19/2016 05/19/2016 05/19/2016 05/20/2016 06/16/2016
06/16/2016
06/20/2016 06/20/2016
06/20/2016
06/30/2016 06/30/2016 07/27/2016 09/07/2016 01/30/2017

356 OBJECTIONS to re 352 Special Masters Order, STATEMENT RE HOURS BILLED AND PROPOSED EXPENSE ALLOCATION by Victor Guerrero. (Ho, Christopher) (Filed on 5/12/2016) (Entered: 05/12/2016)
357 RESPONSE (re 354 MOTION MODIFY/ADOPT THE SPECIAL MASTER'S RECOMMENDATONS ) filed byVictor Guerrero. (Ho, Christopher) (Filed on 5/19/2016) (Entered: 05/19/2016)
358 RESPONSE to re 356 Objection of Plaintiff to Special Master's Recommendations by California Department of Corrections and Rehabilitation. (Young, Christopher) (Filed on 5/19/2016) (Entered: 05/19/2016)
359 JOINDER re 358 Opposition/Response filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Egel, Dorothy) (Filed on 5/19/2016) Modified on 5/20/2016 (dtmS, COURT STAFF). (Entered: 05/19/2016)
Electronic filing error. Incorrect event used. Correct event is JOINDER.Corrected by Clerk's Office. No further action is necessary. Re: 359 Opposition/Response to Motion, filed by Suzanne Ambrose (dtmS, COURT STAFF) (Filed on 5/20/2016) (Entered: 05/20/2016)
360 ORDER RESOLVING OBJECTIONS, ADOPTING SPECIAL MASTER'S REPORT AND RECOMMENDATION WITH ONE MODIFICATION, AND FIXING COMPENSATION 354 353 352 296 . (Attachments: # 1 Appendix Report of Special Master)(whalc2, COURT STAFF) (Filed on 6/16/2016) (Entered: 06/16/2016)
361 Minute Entry for proceedings held before Hon. William Alsup: Motion Hearing held on 6/16/2016. Total Time in Court 2 minutes. Court Reporter Name Kathy Sullivan. Plaintiff Attorney Christopher Ho; Richard Pearl. Defendant Attorney Dorothy Egel; Chris Young. Attachment minute order.(dl, COURT STAFF) (Date Filed: 6/16/2016) (Entered: 06/17/2016)
362 Notice of Appeal FEE PAID (Filing fee$505,receipt number 0971−10542406). (Young, Christopher) (Filed on 6/20/2016) (Entered: 06/20/2016)
363 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Jeffrey Beard, California Department of Corrections and Rehabilitation, K Carroll, S Cox, C Hester, V Mayol, V Myers, D Sharp. Appeal of Order on Motion for Attorney Fees, 360 (Pay.gov Agency Tracking ID 0971−10542406.) (Young, Christopher) (Filed on 6/20/2016) Modified on 6/20/2016 (dtmS, COURT STAFF). (Entered: 06/20/2016)
364 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Appeal of Order on Motion for Miscellaneous Relief,, Order on Motion for Attorney Fees, 360 (Appeal Fee: Paid, $505.00, ID Tracking/Receipt Number 0971−10547476) − [SPB's Notice of Appeal and Representation Statement] (Egel, Dorothy) (Filed on 6/20/2016)..Modified on 8/24/2016 (tnS). (Entered: 06/20/2016)
365 USCA Case Number 16−16096 for 363 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll. (dtmS, COURT STAFF) (Filed on 6/30/2016) (Entered: 06/30/2016)
366 USCA Case Number 16−16098 for 364 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (dtmS, COURT STAFF) (Filed on 6/30/2016) (Entered: 06/30/2016)
367 ORDER of USCA as to 364 Notice of Appeal filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (tnS) (Filed on 7/27/2016) (Entered: 07/27/2016)
368 ORDER REGARDING CDCR'S PAYMENT OF SPECIAL MASTER FEE. Signed by Judge Alsup on 9/7/2016. (whalc2, COURT STAFF) (Filed on 9/7/2016) (Entered: 09/07/2016)
369 NOTICE of Change of Organizational Name and Email Addresses of Plaintiffs' Counsel by Victor Guerrero (Ho, Christopher) (Filed on 1/30/2017) Modified on 1/31/2017 (alsS, COURT STAFF). (Entered: 01/30/2017)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 35 of 37

08/04/2017 08/11/2017
08/11/2017 08/11/2017 08/16/2017 08/25/2017
09/05/2017 09/05/2017 09/11/2017 09/12/2017 09/12/2017
09/15/2017 09/22/2017

370 USCA Memorandum as to 282 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll, 287 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (tnS) (Filed on 8/4/2017) (Entered: 08/04/2017)
371 ORDER of USCA as to 363 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll, re 364 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board, re 282 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll. (tnS) (Filed on 8/11/2017) (Entered: 08/11/2017)
372 MANDATE of USCA as to re 363 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll, re 364 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board. (tnS) (Filed on 8/11/2017) (Entered: 08/11/2017)
373 CLERK'S Letter Spreading Mandate to Counsel. (tnS) (Filed on 8/11/2017) (Entered: 08/11/2017)
374 CLERK'S NOTICE Scheduling Further CMC on Remand # 370 USCA Memorandum. (This is a text−only entry generated by the court. There is no document associated with this entry.) Case Management Statement due by 9/7/2017. Further Case Management Conference set for 9/14/2017 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (dlS, COURT STAFF) (Filed on 8/16/2017). (Entered: 08/16/2017)
375 CLERK'S NOTICE RESCHEDULING FURTHER CASE MANAGEMENT CONFERENCE. Due to the unavailability of the Court, the Further Case Management Conference previously scheduled for Thursday, September 14, 2017 has been rescheduled to Tuesday, September 12, 2017 at 11:00 AM before the Honorable William H. Alsup.. (This is a text−only entry generated by the court. There is no document associated with this entry.) Joint Case Management Statement due by 9/5/2017. Further Case Management Conference reset to 9/12/2017 11:00 AM in Courtroom 8, 19th Floor, San Francisco. (tlS, COURT STAFF) (Filed on 8/25/2017) (Entered: 08/25/2017)
376 CASE MANAGEMENT STATEMENT JOINT filed by Victor Guerrero. (Ho, Christopher) (Filed on 9/5/2017) (Entered: 09/05/2017)
377 ORDER of USCA Denying Motion for Reconsideration as to 364 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board, 287 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board (sxbS, COURT STAFF) (Filed on 9/5/2017) (Entered: 09/06/2017)
379 MANDATE of USCA as to 363 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll, 282 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll (sxbS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/12/2017)
378 ORDER RE SEPTEMBER 12 CASE MANAGEMENT CONFERENCE Signed by Judge Alsup on 9/12/2017. (whalc1, COURT STAFF) (Filed on 9/12/2017) (Entered: 09/12/2017)
380 Minute Entry for proceedings held before Hon. William Alsup: Further Case Management Conference on Remand held on 9/12/2017.Court and counsel addressed issue of attorneys fees. Total Time in Court 26 minutes. Court Reporter Name Belle Ball. Plaintiff Attorney Christopher Ho; Richard Pearl. Defendant Attorney (CA Dept of Corrections) Miguel Neri; Fiel Tigno. Defendant Attorney (State Personnel Board) Dorothy Bacskai Egel.Attachment Civil Minutes.(tlS, COURT STAFF) (Date Filed: 9/12/2017) (Entered: 09/13/2017)
381 NOTICE by Victor Guerrero WITHDRAWAL AS COUNSEL OF RECORD (Villalobos, Stacy) (Filed on 9/15/2017) (Entered: 09/15/2017)
382 NOTICE of Appearance by Marisa Cristina Diaz (Diaz, Marisa) (Filed on 9/22/2017) (Entered: 09/22/2017)

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 36 of 37

09/29/2017 09/29/2017 09/29/2017 10/02/2017 10/04/2017 10/10/2017 10/17/2017 10/25/2017 10/30/2017 10/31/2017 10/31/2017 11/09/2017 11/13/2017
11/13/2017 11/13/2017

383 RESPONSE to re 378 Order re Judge's Proposal re District Court Attorney Fees by California Department of Corrections and Rehabilitation. (Neri, Miguel) (Filed on 9/29/2017) (Entered: 09/29/2017)
384 NOTICE by Victor Guerrero OF NON−SETTLEMENT OF PLAINTIFF'S DISTRICT COURT ATTORNEYS' FEES MOTION (Ho, Christopher) (Filed on 9/29/2017) (Entered: 09/29/2017)
385 RESPONSE to re 384 Notice (Other) Plaintiff's Notice of Nonsettlement of District Court Attorneys' Fees Motion by California Department of Corrections and Rehabilitation. (Attachments: # 1 Exhibit Attached Email)(Neri, Miguel) (Filed on 9/29/2017) (Entered: 09/29/2017)
386 NOTICE by Victor Guerrero OF SUPPLEMENTAL NOTICE RE NON−SETTLEMENT OF PLAINTIFF'S DISTRICT COURT ATTORNEYS' FEES CLAIM (Ho, Christopher) (Filed on 10/2/2017) (Entered: 10/02/2017)
387 ORDER RE PLAINTIFF'S REQUEST TO CONSIDER SETTLEMENT OFFER re 386 Notice (Other) filed by Victor Guerrero Signed by Judge Alsup on 10/4/2017. (whalc1, COURT STAFF) (Filed on 10/4/2017) (Entered: 10/04/2017)
388 Response re 387 Order Re PLAINTIFF'S REQUEST TO CONSIDER SETTLEMENT OFFER byVictor Guerrero. (Ho, Christopher) (Filed on 10/10/2017) (Entered: 10/10/2017)
389 BILL OF COSTS by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Objections due by 10/31/2017. (Attachments: # 1 Declaration Decl of DorothyBacskai Egel iso Cost Bill, # 2 Exhibit Exhibits A, B & C)(Egel, Dorothy) (Filed on 10/17/2017) (Entered: 10/17/2017)
390 Proposed Order Re Settlement of Plaintiff's Attorneys' Fees Motions by Victor Guerrero. (Attachments: # 1 Exhibit A)(Ho, Christopher) (Filed on 10/25/2017) (Entered: 10/25/2017)
391 OBJECTIONS to re 389 Bill of Costs, Re Defendant STATE PERSONNEL BOARD by Victor Guerrero. (Attachments: # 1 Declaration C. Ho Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Ho, Christopher) (Filed on 10/30/2017) (Entered: 10/30/2017)
392 ORDER GRANTING STIPULATION AS MODIFIED re 390 Proposed Order filed by Victor Guerrero. Signed by Judge Alsup on 10/31/2017. (whalc1, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)
393 ORDER RE OBJECTION TO COSTS re 391 Objection, filed by Victor Guerrero Signed by Judge Alsup on 10/31/2017. (whalc1, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)
394 BILL OF COSTS Def Response to Opposition to Cost Bill by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Objections due by 11/24/2017. (Attachments: # 1 Declaration Supplemental Decl of Egel, # 2 Exhibit Exhibits A−I to Supp Decl of Egel)(Egel, Dorothy) (Filed on 11/9/2017) (Entered: 11/09/2017)
395 MOTION for Leave to File REPLY BRIEF AND SUPPORTING DECLARATIONS IN SUPPORT OF OBJECTIONS TO COST BILL OF DEFENDANT STATE PERSONNEL BOARD filed by Victor Guerrero. (Attachments: # 1 Exhibit A − PLAINTIFF'S REPLY BRIEF, # 2 Exhibit B − GUERRERO DECLARATION ISO OBJECTIONS TO SPB COST BILL, # 3 Exhibit C− C−HO DECLARATION ISO OBJECTIONS TO SPB COST BILL)(Ho, Christopher) (Filed on 11/13/2017) (Entered: 11/13/2017)
396 Brief re 393 Order Def Response to Opposition to Cost Bill filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Related document(s) 393 ) (Egel, Dorothy) (Filed on 11/13/2017) (Entered: 11/13/2017)
397 Brief re 395 MOTION for Leave to File REPLY BRIEF AND SUPPORTING DECLARATIONS IN SUPPORT OF OBJECTIONS TO COST BILL OF DEFENDANT STATE PERSONNEL BOARD Def Response to Opposition to Cost Bill (CORRECTION) filed bySuzanne Ambrose, Barbara Leashore, State Personnel Board. (Related document(s) 395 ) (Egel, Dorothy) (Filed on 11/13/2017) (Entered:

Case: 3:13-cv-5671 As of: 07/01/2018 03:25 PM PDT 37 of 37

11/28/2017
12/09/2017 12/09/2017 12/11/2017 01/05/2018 03/28/2018

11/13/2017)
398 ORDER GRANTING IN PART GUERRERO'S MOTION FOR LEAVE TO FILE A REPLY by Judge William Alsup granting in part and denying in part 395 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 11/28/2017) (Entered: 11/28/2017)
399 ORDER RE OBJECTION TO COSTS re 391 Objection, filed by Victor Guerrero. Signed by Judge Alsup on 12/9/2017. (whalc1S, COURT STAFF) (Filed on 12/9/2017) (Entered: 12/09/2017)
400 MODIFIED JUDGMENT. Signed by Judge Alsup on 12/9/2017. (whalc1S, COURT STAFF) (Filed on 12/9/2017) (Entered: 12/09/2017)
401 BILL OF COSTS AMENDED by Suzanne Ambrose, Barbara Leashore, State Personnel Board. Objections due by 12/26/2017. (Attachments: # 1 Declaration Decl of Egel and Exhibits)(Egel, Dorothy) (Filed on 12/11/2017) (Entered: 12/11/2017)
402 Costs Taxed in amount of $13,070.20 Re: 401 Amended Bill of Costs against Plaintiff Victor Guererro. (mklS, COURT STAFF) (Filed on 1/5/2018) (Entered: 01/05/2018)
403 ORDER of USCA denying pending motions as moot as to 363 Notice of Appeal, filed by V Myers, D Sharp, S Cox, Jeffrey Beard, California Department of Corrections and Rehabilitation, V Mayol, C Hester, K Carroll, 364 Notice of Appeal, filed by Suzanne Ambrose, Barbara Leashore, State Personnel Board (sxbS, COURT STAFF) (Filed on 3/28/2018) (Entered: 03/28/2018)