Brazill v. California Northstate College of Pharmacy, LLC et al

Filing 39

ORDER signed by Senior Judge William B. Shubb on 8/22/2013 DENYING #38 California Northstate College Pharmacy, LLC's Second Motion for Summary Judgment. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRADLEY BRAZILL,

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NO. CIV. 2:12-1218 WBS GGH

Plaintiff,

ORDER RE: SECOND MOTION FOR
SUMMARY JUDGMENT OR,
ALTERNATIVELY, PARTIAL SUMMARY
JUDGMENT

v.
CALIFORNIA NORTHSTATE COLLEGE OF
PHARMACY, LLC, CALIFORNIA
NORTHSTATE UNIVERSITY, LLC, and
DOES 1 through 10, inclusive,

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Defendants.
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/

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Plaintiff Bradley Brazill brings this action against

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defendants California Northstate College of Pharmacy, LLC (the

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“College”), and California Northstate University, LLC (“CNU”),

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arising from defendants’ allegedly wrongful conduct related to

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the termination of plaintiff’s employment.

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consists of four claims: (1) age discrimination under the Age

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Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634;

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(2) age discrimination under the California Fair Employment and
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The Complaint

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Housing Act (“FEHA”), Cal. Gov’t Code §§ 12900-12996; (3)

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retaliation under the False Claims Act (“FCA”), 31 U.S.C. §

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3730(h); and (4) wrongful termination in violation of public

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policy on the basis of violations of the ADEA, FEHA, and FCA.

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(Docket No. 10.)

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Defendants move for summary judgment, or in the

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alternative, partial summary judgment on April 4, 2013.

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No. 29.)

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(Docket

court dismissed plaintiff’s FCA claim and his wrongful

In its June 4, 2013 Order resolving that motion, the

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termination in violation of public policy claim to the extent it

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was based on the FCA claim.

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(Docket No. 25).)

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(Id. at 25:18-20.)

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second motion for summary judgment, or alternatively, partial

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summary judgment pursuant to Federal Rule of Civil Procedure 56.

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(Docket No. 29.)

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(June 4, 2013 Order at 25:5-17

It also dismissed all claims against CNU.
Presently before the court is the College’s

District courts have discretion in determining whether

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to permit successive motions for summary judgment.

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Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010).

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successive summary judgment motion is appropriate especially if

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one of the following grounds exists: (1) an intervening change in

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controlling law; (2) the availability of new evidence or an

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expanded factual record; and (3) [the] need to correct a clear

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error or prevent manifest injustice.”

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F.3d 527, 530 (7th Cir. 1995) (quoting Kern-Tulare Water Dist. v.

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City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986)).

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Hoffman v.

“A renewed or

Whitford v. Boglino, 63

The College bases its second motion for summary
judgment on “an expanded factual record.”
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(See Mem. in Supp. of

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Summ. J. at 12:8-10 (Docket No. 38-1).)

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indicated at the hearing on defendants’ first motion for summary

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judgment “that evidence concerning the hiring process of

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[p]laintiff’s replacement as Department Chair, Dr. James

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Palmieri, which was largely absent from the record, would have

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assisted [it] in ruling on the motion.”

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It notes that the court

(Id. at 1:9-11.)

In Hoffman, the Ninth Circuit stated that “a successive

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motion for summary judgment is particularly appropriate on an

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expanded factual record.”

Hoffman, 593 F.3d at 911.

It then

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held that the district court did not abuse its discretion by

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allowing the defendant to file another summary judgment motion

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after a mistrial.

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deposition of an expert witness after the deadline for pretrial

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summary judgment motions, the testimony at trial, and the

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addition of a new expert witness after the mistrial expanded the

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factual record beyond what it had been at the time of the

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pretrial summary judgment motion.”

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Id. at 912.

The court explained that “[t]he

Id.

The court is not persuaded that an “expanded factual

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record” in the sense meant by the Hoffman court is present here.

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The College does not base its second motion on a previously

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unavailable deposition, trial testimony, new expert witness, or

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similar evidence.

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the College now offers includes only evidence that could have

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been included in the College’s first motion for summary

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judgment.1

Instead, the “expanded factual record” that

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Another case relied on by the College, Cohea v. Pliler,
2:00-CV-2799 GEB EFB, 2013 WL 687081 (E.D. Cal. Feb. 25, 2013),
report and recommendation adopted as modified, 2:00-CV-2799 GEB
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What the court may suggest in colloquy with counsel at

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a hearing is not the court’s order.

If the court had required

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information about the hiring of Palmieri to decide defendants’

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first summary judgment motion, it would have requested

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supplemental briefing.

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used to test what the court’s ruling will be and then to patch

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any deficiencies a defendant makes in the original motion with a

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subsequent motion.

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compelling basis for the court to consider this second summary

The summary judgment process is not to be

Here, the College has not provided any

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judgment motion, which essentially reiterates the same arguments

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the College made in the first motion.

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IT IS THEREFORE ORDERED that California Northstate

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College of Pharmacy, LLC’s second motion for summary judgment, or

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in the alternative, partial summary judgment be, and the same

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hereby is, DENIED.

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DATED:

August 22, 2013

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EFB, 2013 WL 1281888 (E.D. Cal. Mar. 26, 2013), actually
undermines its position. In that case, the court considered the
defendants’ second summary judgment motion after explaining that
it was based on evidence that was not available at the time of
the first motion and, unlike the first motion, was filed after
the plaintiff filed an amended complaint. See Cohea, 2013 WL
687081, at *4.
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