Petition for Writ of Certiorari — Flores v. FMC Corp.

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Supreme Court, U.S.

FILED

961217 NOV 1 219%

No. OFFICE -OF THE-GLERK

IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1996.

Moctezuma Flores,

petitioner,

respondents,

ON PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS (6th Circuit) OF THE

STATE OF CALIFORNIA

PETITION FOR WRIT OF CERTIORARI

Moctezuma Flores

984 Prevost St.

San Jose, California.

95125.

Phone (408) 293-3527.

( plaintiff appearing

In Propria Persona.)

QUESTIONS PRESENTED

45 DAYS TIME LIMITATION WHERE TRANSFER --

OCURRED JANUARY 27, 1994; AND REQUEST WAS --

MADE ON FEBRUARY 8, 1994, DOES NOT REFLECTS-

45 DAYS WAITING TO REQUEST DISCOVERY.

ALLOWANCE TO SET-ASIDE "ENTRY OF DEFAULT"

IN TERMS OF "DEFAULT JUDGMENT" AS WHERE “DE-

FAULT JUDGMENT" NEVER TOOK PLACE. (RIGHT JU

DICIAL PROCEDURE HEREIN AS APPENDIX 82).

ALLOWANCE OF DEFENDANT'S “SUMMARY JUDG -

MENT" WITHOUT HAVING ANSWERED COMPLAINT BY

ANY DEFENDANT: WITHOUT DISPOSING OF THE -

ENTIRE ACTION AND NEITHER PRESENTING AS A--

FFIRMATIVE DEFENSE ON THEIR's “UNDISPUTABLE

MATTERIAL FACTS", IN CONFLICT WITH THE CASE

OF: (Wilson vs. Blue Cross. 222 Calif. App.

3d. 660.) (Included herein as Appendix 88.

QUASHING SUMMONS FOR NOT HAVING ON ITS -

FACE "PROOF OF SERVICE", MAKES THE COURT A--

DOPTING A NEW JUDICIAL PROCEDURE IRRECOCI--

LABLE WITH THOSE INSTRUCTED ON SUMMONS i,e.

summons prey; ‘a letter or phone call will

not protect you." (Appendix 33)

MEANWHILE, THE COURT ACCEPTED AN ANGRY LETTER

BY DEFENDANTS AS FULL ANSWER. (App. 42)

ONE YEAR TIME LIMITATION TO FILE A LAWSUIT

FROM THE DATE OF JOB TERMINATION, IN CONFLICT

WITH THE DECISION ON: (Aivin vs. FESCO: 733-

FED. 2d. 622).(Included as appendix 87).

PERJURY COMMITED AND SUBMMITED TO COURT BY-

RAMOS AND CEDERHOLMS, UNMENTIONED BY COURT.

OPINION BELOW

JURISDICTION

eeervroee4e5ee##se#e#e## eee#ees

CONSTITUTIONAL AND STATU

TORY PROVISIONS INVOLVED......-- °

STATEMENT OF THE CASE cocccecce

REASONS FOR GRANTING WRIT ....--

COURT OF APPEALS! DECISION

IN DENYING PLAINTIFF's -

"DUE PROCESS OF LAW" IN DI

RECT CONFLICT

CASES AND LAW

A. 45 days

WITH OTHER -

limitation to re

guest ciscovery.

B. Allowance to set-aide de

fault.

C. Allowance of defendant '‘s-

"Summary judgment". ......-

D. Quashing summons for not -

having on its face "proof-

of service". (+en eens

E. Allegations plaintiff did--

not answered defendant's --

"undisputable Matt. Facts".

F. One year statute of limita

tion to

CONCLUSION

file lawsuitcecress

Page

iii

TABLE OF AUTHORITIES

Cases Appendix

Alvin vs. FESCO Div. 87

733 Fed. 2d. 622

Huynh vs. Ingersoll 88

16 Cal. App 4th 825.

Peterman vs. Interntl. 87

174 Cc. A. 2d. 184

Wilson vs. Blue Cross 88

222 Ca. App. 3d. 660.

Statutes

Code of Civil Proc. §415.20

Code of Civil Proc. §432.5

Code of Civil Proc. §437cf1

Code of Civil Proc. §473.5

Code of Civil Proc. §720

Code of Civil Proc. §1014

Code of Civil Proc. §1283.6

Code of Civil Proc. §1714

Code of Civil Proc. §2931

TABLE OF

AUTHORITIES

Labor

Penal

Code

§2856

§2857

§6311

§6313

§6400

§118

continued

Appendix

OPINION BELOW

The opinion of the Court of Appeals re--

printed herein in Appendix 1; Petition for

rehearing by Ct. of Appeals as Appendix 21;

extension of time for granting or denying--

review by Calif. Supreme Ct. as Appendix --

22; Supreme Court of California denying re

view as Appendix 23 included herein.

JURISDICTION

Letter sent by the U.S. Supreme Court --

on December 3th 1996, allows plaintiff 60--

days to submmit his Writ of Certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVES

THE FIST QUESTION CONCERNS THE CHARACTER

OF IMPOSSING 45 DAYS TIME LIMITATION TO--

PLAINTIFF TO REQUEST DISCOVERY. INCLUDED

HEREIN AS APPENDIX 71.

THE SECOND QUESTION CONCERNS THE CHRACTER

OF SETTING-ASIDE DEFAULT BASED ON AN ATTOR _

NEY's TESTIMONY INSTEAD OF THE DEFENDANT 's-

TESTIMONY; AND SUBSTITUTION OF “ENTRY OF _

DEFAULT" FOR A “DEFAULT JUDGMENT".

THE LAW GOVERNING THE RIGHT PROCEDURE: Code

of Civil Procedures §473.5 IS INCLUDED HERE

IN AS APPENDIX 75 & 76.

THIRD QUESTION CONCERNS THE ALLOWANCE OF

SUMMARY JUDGMET FILED BY DEFENSE WITHOUT--

HAVING ANSWER CHARGES OF COMPLAINT AND __

ALSO WITHOUT DISPOSING THE DEFENSE OF THE __

ENTIRE ACTION.

FOUR QUESTION CONCERNS QUASHING SUMMONS

FOR NOT HAVING ON ITS FACE THE STATEMENT

"PROOF OF SERVICE".

FIFTH QUESTION CONCERNS THE DENIAL OF

THE TRIAL COURT IN ALLOWING ANSWER TO THE-

DEFENDANT's "UNDISPUTABLE MATTERIAL FACTD"

FOR NOT HAVING SAID ANSWER THE MAGIC WORDS

RGREE OR DISAGREE.

SIXTH QUESTION CONCERNS THE ONE YEAR -

LIMIT TO FILE A fwsuIt, CLEARLY IRRECON€ILA

BLE WITH OTHER PUBLISHED CASES & STATUTES.

STATEMENT OF THE CASE

Following, plaintiff very briefly is going

to explain the reason of his request for a--

Writ of Certiorari directed to this Court.

Plaintiff worked for FMC Corp. as cad-pla

tter from 1983 until he was terminated. (1992)

Until 1991, plaintiff received but congratula

tions, prizes, diplomas for his oustanding --

work performance and preesentism.

This tratment quickly changed right after

plaintiff complained in March of 1991 about-

drugs distribuition on his area. Supervisor-

Sally Jenks took note of plaintiff's problem-

and promised to go later and or to have a pri

vate meeting with plaintiff so he could ex --

plained and describe & or point-out who were-

the outsiders .

Sup. Sally Jenks never showed-up or mad@ any

intent to comunicate with plaintiff.

Plaintiff all these years was at work doing

his job in a very old equipment an machinery.

As consequence, authomatic machine and crane-

used on the place was very often “put of order

for which FMC had expert personal in the event

of those downs. We, the part processors never

had any direct or indirect role in the fixture

of the equipmeht. (plaintiff never disagree-

with this practice).

————eueenaLaQeY]—

Plaintiff during his assignment as cad-

platter, had to report around FORTY caustic

spills. (for one plaintiff got fired). They

always were detected about 1 or 2 Hrs. latter

on the shift, since plaintiff had to load-

parts for degrease or de-rust everyday. It --

took him from 14 to 3 hrs. everyday to star

processing parts inside.

Plaintiff at one time suggested not to -

report those spills further since they seemed

to be endless. Supervisor insisted they had-

to be reported.

With respect to drugs and the complaint-

ignored by Sally Jenks, plaintiff did not -

gave=up and insisted to managerial employees

to remove plaintiff from the area or to --

eradicate the problem. This time plaintiff--

directed his complaint to Gerald Cederholms.

This man ignored plaintiff for which I next

time complained to Sup. David Lee who said -

he knew the problem existed but he could not

do anythink because he depend on his salary

to pay the rent.

Following those complaints, an employees

name Ruano one day to plaintiff's place and

without hesitation and in front of a supervi

sor and two other employees, . Ruano called--

plaintiff: “Mother fucker; son of a bitch;-

and other terms for which plaintiff suggested

wad

supervisor to stop him. and plaintiff asked

supervisor: Is he crazy or What?

Later, supervisor returned to plaintiff &

said Ruano had said he said what he said --

because he did not like plaintiff. He further

said he could not do anything about it and -

if plaintiff wanted, hefould go to his Union

that maybe the Union could do something about

it.

Secon day in a row, (following day) and--

while plaintiff was driving a fork-lift, --

Ruano approached to the for-lift and putting

a foot underneath each whell of the for-lift

(one under front tire and another foot under

the rear tire) he challenged plaintiff:

“Come on sucker, move the forlift and --

smash my feet; come on, I want to see it.

Plaintiff one more time reported to the--

same supervisor who one more time came ---~

to plaintiff's place of work at night and -

said: "I am sorry, but I can not do anything

about it; I spoke to my supervisor and he --

said we can not do anything. If as I told --

you, you want to go to your Union, maybe they

can help you. We do not.

Third day in a row, Ruano and while plain

tiff was selected parts to process, he took--

possession of the forklift by throwing plain--

tiff's keys to the floor and star adrviving

the forlift around and around with no purpo

se. Plaintiff went to Sup. office and ano

ther person was in there. Carlos Ramos.

Both men came out and ordered Ruano to--

return forklift.

Later that evening, plaintiff was called

to supervisor's office and was told by Car

los Ramos that he had analyzed the whole --

Situation and had concluded that it was --

plaintiff the one responsible for the dispu

tes with Ruano for which Ramos extended to

plaintiff a corrective action sheet of paper

in which he concluded plaintiff was the res

ponsable for not wanting to Share a forlift.

Plaintiff protested and referred that he

was not going to stop complainning about the

illegal activities on his area until he --

was removed, and even after, if they choose

somebody else to blame, plaintiff was going

to come out and make the right accussations.

Ramos reaction was that he felt soo

ffended by plaintiff and also threathed.

Following day, plaintiff was again called

to Supervisor's office and was told to re--

turn the previous corrective action in ex-

chenge for a new one that readed: Plaintiff

has sustained injuries to Ruano to the ex--

tend tha Ruano had to be hospitalized.

Ramos rationalize by saying that even-

though everything was unreal, he was doing-

this because the previous day, he had not--

seen any remorse on plaintiff's face.

He continued: If you accef€it, you can go

back to work without worry about anything. -

On the contrary, if you do not accept it, I

will refer the case further and you may end-

up suspended and up to terminated.

Plaintiff refused +to share those perju--

rious testimonies and end-up suspended des

pite the fatt Union-had conducted a private

investigation in which all witnesses testi-

fied plaintiff had not touch Ruano.

On February 1992 and after an ankle's --

surgery, plaintiff returned to work after -

several months of abscence. Plaintiff noti

ced right away that the wave of outsiders-

kept on comming to buy drugs at the area.

On May 1992, plaintiff had a discussion

with two ladies who were in the room with-

those transactions for which plaintiff said:

"Ladies, better find a new place to do-

what you are doing. I am tire of this situa

tion and I am going to continue complaining

even outside.

The two ladies leaved for a while but --

later returned with about a dozen of folks-

who started laughing so loud.

At that moment, a Gen. Supervisor (Tom

Silva) appeared in the area and inmediatly

plaintiff referred all those persons in ---

there.

Silva did not answer; he looked at the--

bunch of people and when he was leaving, -

he looked at plaintiff with a lot of anger.

Following day, plaintiff had problems --

with the old machine and finally was "down".

Following day, plaintiff was called to

Gerald Cederholm's office and was asked about

the machine "down". (sometimes the machine

was down three times in a single week).

Plaintiff notice none of the emplYees

present knew or had any experience at all--

in fixing the equipment.

Ciderholms then continued: “I hear --

you called the attention on two ladies at -

the area. Is that true?

Plaintiff's answer was: Yes.

Ciderholms continued: “Let me tell you you--

are not here to call the attention on anybo

dy; and I do not want to hear that again.

Plaintiff reply was: "“as long as you --

keep me working in that area and under the-

conditions, I will continue to complain. --

You know that those activities make the pla

ce unsafe.

Ciderholms reply was that he was Going--

to move me but that meanwhile, he had deci

ded to name Annis, and Delara (Peter) his

masters employees. That meant, plaintiff had

to follow instructions from those co-workers.

Plaintiff refused and later, shop-stewar

dess discussed the matter with Cederholms --

about this new decision.

Cederholm used as excuse the fact the --

machine had been "down" the previous day &

that plaintiff's opinion about the “down"

was Giferent of that of Delara.

Union emphasized: "You can not rely on

fixing the machine on somebody who has no-

experience, training, background and who --

has depended 100% on the experts. Delara--

has never fixed anything, he, same as Flores

has experience in processing parts, nothing

else."

Apparantliy Cederholms did not want to --

understand the reality. Later, Shop-stewar

dess talked to plaintiff:

"This man is wrong, he can not ‘make "mas

ters employees" overnight. Delara is far --

from being qualified to fix such complicated

equipment. You do not have to obey instruc --

tions from another employee.

Same day Cederholm sent the instruction

through the leadperson that plaintiff had to

work on phosphate.

Plaintiff protested due to fact I had not

ever been working in that area and had no --

training.

Leadperson waited for an answer and plain

tiff had to accept since early that day that

maW Cederholms had told plaintiff that any-

diobedience was against plaintiff and he --

could suspend or terminate plaintiff at any

time . That he had permission from his boss.

Plaintiff received mild instruction --

from leadperson but plaintiff could not do

anything due to the fact the tank plaintiff

had been assigned to work with, was out of--

compliance: The water level was so high; the

air was so strong. Plaintiff turned a valve

because the acid was splashing outside the -

tank due to the air. Plaintiff did this move

very gentle and careful due to the fact that:

"The two valves were identical and had no --

Sign indicating which was air and which was

water. Secondly; plaintiff could instead of-*

shouting down the valve, oppenning more.

Plaintiff move one valve very slightly-

and when the air did not change, he moved it

back to its original position. Then, he moved

the other one and happened to be the air--

valve.

Plaintiff did not process anything due to

water level. About five minutes later, lead

person approached to plaintiff an. to tell--

him that plaintiff had created an spill.

Plaintiff did not take that seriously and

answered smiling: "not me, I was there but-

for only a couple of minutes."

Plaintiff expected recriminations for not

having process the parts there as told; but-

the leadperson did not said anything.

Later, when plaintiff was in his usual--

ocupation, Supervisor Tom Silva approached-

and told plaintiff to go home; that he (sup.)

was going to make an experiment on the cad-

plate area.

Plaintiff went home and the following day-

when he reported to work, he was given the--

news that supervisor Cederholms had issued a

corrective "final warning" against, because

plaintiff was the responsible of an spill ---

that ocurred on phosphate.

Inmediately, plaintiff and shop-stewardess

went to discuss the situation with Cederholms

who said:

"The fact this man walked on the plataform

of phosphate, is enough for me to conclude he

is reponsible,

Stewardess insisted{ "Besides how can you --

conclude that in two minutes he spent over --

there he could create an spill of 3,000 gal.?

Stewardess continued: "It was your res--

ponsability to call the Emergency Responding

Team to make an investigation and determine-

the reasons of the spill; you did not said--

anything; none of us saw anything."

Cederholms answer was: "Fuck the ERT --

team; and anybody on this man's side. (plain

tiff). ail you want me is to cancel the co--

rrective act; but it will stay."

Stewardess continued: " You know very well

is in the contract you can not assign a person

to work alone; much less as you did, assign--

persons to work on dangerous areas in which --

they do not have experience and they have not

work before,"

Cederholms answer was: "Get-out; get out--

of my office",

Stewardess insisted: "At least what you can

do is come and hear what Mr. Flores did on --

phosphate and after lisent, you can discuss of

what was done wrong."

Cederholm answered: "You have 60 seconds-

to leave my office or I will call security --

to put you both with your feet on the street",

He continued: " I am not going to dis-

cuss my decisions or hear the nonsenses of a

person like Moctezuma Flores".

Following day, Stewardess talked to Sup.-

David Lee who said he did not know of why --

plaintiff was assigned to work in an area he

had not worked before; and promised to talk -

to Cederholm and to pull-out or lower the

punishment.

Following day, Sup. David Lee returned-

and expressed to stweardess and plaintiff --

that Cederholms did not want to talk about--

it. All he said, was that the punishment ---

will stay.; and to confirm his decision, he

gave me this document: The document readed -

among other things:

Type of Action: "Final warnning",

ACTION THAT HAS BEEN OR WILL BE TAKEN TO

PREVENT A RECOURRENCE OF THIS TYPE OF _

SPILL?

"Disciplinary action; "final warning".

(App 29-30).

Right after this outburst of Cederholms-

and the conditions under which plaintiff was

forced to work, plaintiff communicated to a-

Drug Enforcement Agent who suggested to ---

plaintiff to write a letter to somebody else

at FMC. He remarked: "Do not send it to Car

los Ramos or Jerry Cederholms.

Right after plaintiff sent the letter to

Sup. Bianc@ Giammanco, defendant Carlos Ra-

mos made turee phone calls in three conse

cutive days each day suggesting plaintiff

to write a new letter to Giammanco Saying -

that everything was a misunderstanding of--

drugs distribution.

Plaintiff refused to Ramos Suggestion &-

Ramos stated he was to gave a report to Mrs,

Giammanco and that he was going to tell her

nothing was true and she was going to belie

ve him, not me,

On June 1992 and contrary of what the --

Union had stated to Cederholm of not to --

assign employees to jobs without the requi

red 400 hours training and or to leave ---

anybody working alone on the plant suddenly

one Evening without notice, plaintiff found

himself working alone again. Plaintiff --

look for help and explanation of what was -

going on. Plaintiff could not run the whole

place effectively in which there were needed

at least 10 persons.

Plaintiff could not find any help; nor--

he had a phone or a number to call; neither

Was any supervisor on the plant. FMC had -

Claim David Lee was a Supervisor on the area;

but FMC has enough experience to name su

pervisor to a person like Mr. Lee who only --

showed-up every week on Wensday to deliver -

checks to employees and not to be be seen --

for another week.

Plaintiff was fired for an spill that --

ocurred on that day of June; an spill like-

the forty spill plaintiff had previously --

reported.

Right after plaintiff's termination, --

FMC charged plaintiff with misconduct; but

due to FMC’ uncapability to demostrate the

alleged "misconduct", the Unemplyment Appeal

Board reversed the allegations based on the

abstract.

On February 2 1993, an arbitration took

place in which later plaintiff knew, this

arbitraror was not even impartial; but

basically his determination were directed

to reverse the decision of the judge of the

Unemloyment Appeal Board. He never informed

plaintiff (as it was his responsability) -

about his decision and when plaintiff called

to his office, he never returned any call &

he was also said by the secretary that he-

live in another city.

When plaintiff could not obtain any infor

mation from this man, plaintiff contacted -

the attorney representing plaihtiff who also

never returned any or plaintiff's calls; --

then plaintiff called the Union Hall to Mr.-

Ed Jacksich; and then a certified letter to

the Same man. No answer.

Finally, plaintiff sent a certified letter

to the National Labor Relation Board in ---

which plaintiff explained about the stru--

gles to obtain information about the arbir

tration's result. The NLRB put the pressure

on the Union; because a few days later ---

plaintiff received such information from the

Union. ( On September 30 1993); Then, plain*

tiff submmited his lawsuit on December 30;

1993.

On late January 1994, defendant's counsel

transferred the case from Superior Court to

Federal Court;

On February 1994, plaintiff requested produc

tion of documents and relevant information -

to FMC. (denied).

On March 23 1994, defendant and as defen

dant Gerald Cederholms denied access to --

plaintiff for relevant informatiom

Then, plaintiff moved the Court and subm

mitted his complaint about request for docu

mentation and relevant information on May-

18 1994;

on June 20 1994, Judge Infante deé¢ided on

plaintiff's favor and order FMC to release-

Said information on July 1st 1994;

FMC diobeyed the instruction of Judge --

Infante. The Case was also remanded to the--

Superior Ct. on July 15 1994,

On July: 6 to 15 1994, plaintiff made 5 or

6 phone calls to the attorney in tharge to

release the information requested; that ---

attorney never returned the calls for hich

plaintiff filed a new petition and complain

to the Superior Ct. On August 1st 1994;

Plaintiff's request was denied by commi-

ssioner Jessica Frieschling on basis that -

plaintiff was like a doctor practicing medi

cine without title.

Later plaintiff notified trough paid

service about the Case Managment Conferen

ce scheduled in which none of the defendants

served with summons and complaints shoed-up,.

Neither any defendant submmited any --

answer to complaint as instructed on the --

summons.

On December 21st 1994, and after not -

having made their required “general appea

rance the defendants, plaintiff entered

default against defendants.

Not even after enter the default and

proper notifications made to all of them,-

defendants adamantly remained silent for --

which plaintiff scheduled a date for "De -

fault Judgment".

Defendants had 30 days to answer the -

default; an extension of time could be used

(15 days) if the defendants show a good --

reason for the petition.

Herein, defendant's counsel filed an un

timely petition on February 6th, 1995; --

whith is plagued of errors since the law--

requires defendants had to submmit an an-

swer and under oath and also within the --

30 days from the date of the default was--

entered in Court. Also defendants had to -

submmit along with their answer a proposed

answer they had submmited.

None of the above took place. Plaintiff

believes the Court did not follow the --

required Judicial Procedures,

REASON FOR GRANTING WRIT

The decision given by Court of Appeals -

(App. 1 trough 20) denying plaintiff's re --

quest of information and Documentation from

defendant and also the Court of Appeals deci

sion to set-aside default, deprives plainti-

ffs right of "Due process of Law" he is en-

titled under the XIV Ammendment of the Cons

titution,

A. The decision of the Court in impo

ssing 45 days time limitation for-

plaintiff to request discovery and

relevant information from defendant

relyies on the abstract unumbrelled

by any Law.

On the Court of Appeals opinion (App.15 &

16) asserts had to file a motion on the --

field of discovery 45 ddys after FMC's res--

ponse.,

Defendant's counsel transferred case to-

Federal Court on January 27, 1994; obviously

this is not the response referred above,

On February 8, 1994, plaintiff sent a --

letter to defendant requesting discovery. --

(App. 82).

Asanswer to this letter, defendant Gerald

Cederholms acting as defendant, denyies plain

tiff his request . (APP 43 2 44) This happe

ned on March 23, 1994.

Upon said answer, plaintiff moved the --

Court and file complaint (April 21, 1994) ana

a hearing was scheduled for June 20, 1994 @

Federal Judge order defendant to produce part

of that request on or before July 1st 1994,

(App. 31 & 32).

Defendant disobeyed the Judge instruction

and plaintiff called defendant's counsel --

Approx. July 6th to July 15th., 1994. but -

no phone call was answer.

After case was remanded, On August ist

1994, plaintiff referred the disobedience at

the Superior Ct.

During the meeting on August 27th 1994,

Comissioner Jessica Frischiling reversed --

Federal Judge decision on basis and or her-

Opinion that plaintiff was like a doctor --

practicing medicine without title.

So, the 45 days limitation asserted, do

not fit in the procedures made by plaintiff.

Neither is any Law refering 45 days limi-

tation,

Further, defense's counsel argues this

Law was ammended back on 1987,

This is a tlear misconception of the --

ammendment that took place on 1987,

Section 2023 ammended in 1987 refers to

45 days limitation when disobedience ocurred.

(App. 71).

Herein, disobedience took place on July

Ist, 1994; several phone calls follow on -

the same July; and Court was notified on--

August ist., 1994,

Undisputable evidence submmited herein,

clearly reflects plaintiff not at anytime-

waited 45 days to act; neither there 1s a

violation of the 1987 ammendment.

B. Setting aside default do not fo--

llow the usual normal Judicial --

procedures prescribed by Law.

On the Court of Appeals decision App. 16-

& 17, Ct. allows the set-aside default on -

bais of inadvertence, surprise etc.

However, several issues have to be consi

dered. (i.e.)

(1) Court assertion of “default judgment"

can not be apply herein since the case rea-

ched but only the stage of "entry of default”

and therefore it was the responsability of

defendants, (not attorneys) to present their

proposed defense and under oath.

(2) Since March 23, 1994, Gerald Ceder

holms was already acting as defendant of the

action. (App. 43 & 44).

(3) A week after service of summons &

complaint took place, defnse Counsel Susan

B. Burr sent an angry letter to plaintiff -

for the service rendered. (App. 42).

(4) Later the same lady submmits in

Court a false testimony refering inadver

tence and surprise. (App. 57 & 58) however,

the Court of Appeals considers insufficient

the evidence before them to bar pleadings-

of inadvertence and surprise.

C. Allowance of defense's petition --

for summary judgment without having

answer complaint, clear departure -

from the normal Judicial Procedures.

Defendants refusal to answer charges on-

complaint, does not give Court the power --

needed to allow any summary Judgment; put-

aside default; allowance to quash summons;

and decide on the defense's favor as when -

no defense is before the Court.

D. Quashing summons for not having --

on its face “Proof of service" and

the person served, out of normal-

judicial procedures.

Court of Appeals on Appendix 20, argues --

the face of the summons do not recite to whom

the service is made.

This creates an unnecessary atmosphere of

“misunderstanding as when a summon is but a--

document notifying the defendant(s) there is-

a lawsuit agaist them and their responsabili-

ty (es) to answer.

Proof of service and the person served --

is informed in a separate document called --

"proof of service" which was rendered to the

three defendants and are included herein as:

Appendixes 36, 38, and 40.

On the other hand, the face of the su --

mmon served and which is included here in as

Appendix 33 & 34, clearly recites that a --

letter is insufficient to protect the plain-

tiff(s).

Herein, the Court adopts the position --

that:

a. Service of summons and complaint;

b. Angry letter from defense's coun-

sel for said service rendered.

c. Plaintiff blamed for not answe--

ring sid letter.

Obviously the instructions of the su---

mmons and the practice of the Court. (a, b--

and c above), clear departure from instruc--

tions given and the usual necrmal Judicial-

Procedures.

E. Allowance of the Court plaintiff

did not comply & or answer the--

defense Undisputable Matterial -

Fact for not having the words --

"agree" or disagree",

The fact plaintiff on his answer to ---

defendant's Undisputable Matterial Facts and

which is included said answer herein as ---

appendixes 59 trough 67, do not at any mo--

ment plaintiff's answer creates any ambigui

ty or whether plaintiffs arises the question

he agrees or disarees.

As where plaintiff answered “incorrect -

statement", clearly reflects plaintiff disa

grees with that evidence.

Further, when plaintiff submmited his an

swer, the Trial Court did not put any objec-

tion to said answer until after the defnse

suggested.

If the answer was unaceptable, the Trial

Court could notify plaintiff about it; like

in this petition for Writ, plaintiff pleadinc

defective, he was notified about it.

Plaintiff suggest the decision of the Ct.

“no answer was filed", be reversed for failu

re to express any obvious and or big error.

F. The one year statute of limita

tion clearly in conflict with

other decided cases.

On Appendix 3, Court of Appeals stated --

plaintiff had a year to submmit his his law-

Suit in Court one year from the date of his

termination,

However, it is referred as example, a --

case of discrimination in which a girl su--

ffered of sexual assault in the clinic she

she was working.

The girl took more than a year to star--

exhausting her remedies outside Court and --

from there, the decision of the Trial Court-

to bar her lawsuit based on the one year =-

time limitation to star exhausting her reme

dies outside Court.

Obviously this case of Flores vs. FMC --

is not similar with the one referred on the

Court of Appeals decision.

Flores v. FMC case does not deal with--

any assault; neither is a case of discrimina

tion.

In a situation of Wronful termination, --

it has been established plaintiff has two -

years from the date of his termination to --

file a lawsuit. ( Alvin Daniels vs. FESCO}

attached herein in Appendix 87.

Besides, in the event the employee do --

not exhaust his/her remedies outside the =-

Trial Court no triable issue of fact exists

to considered the lawsuit. Expressed in --

(Peterman vs. International; 174 C.A. 2nd.-

page 184)/ Included herein in Appendix 87.

in this Flores vs. FMC case, plaintiff-

finish exhausting his remedies on September

30, 1993 and submmited his lawsuit on Decem

ber 30 1993.

Plaintiff lawsuit filed well within the

two years limitation impossed on the publi

shed case of Alvin. (above).

CONCLUSION

The usual Judicial Procedures and the

published cases, are irreconcilable with -

the opinion of the Court of Appeals.

For the foregoing reasons, petitioner -

respectfully requests this Court gran his -

Petition for Writ of Certiorari and the al-

ternative grant his Petition for Writ of --

Certiorari, vacate the Court of Appeals de

cisions and remand for further considera --

tion.

Respectfully Submmited,

Moctezuma Flores.

(petitioner appearing in

propia persona, )

App. 1

IN THE COURT OF APPEALS OF ‘THE STATE OF

CALIFORNIA SIXTH APPELBATE DISTRICT.

Moctezuma Flores

Plaintiff and Appellant,

Vv.

FMC Corporation, et. al.,

Defendants and Respondents

HO13 2S

FILED: April 19 1996. (SEALED)

COURT OF APPEALS DECISION

Statement of the Case

Plaintiff Moctezuma Flores appeals from

a judgment entered after the trial court --

granted defendant FMC Corporation motion --

for summary judgment and entered judgmentt-

in its favor. He claims the court erred in-

denying his motion to compel the production

of documents, granting FMC's motion for su

mmary judgment, and granting defendants GE

rald Cederholm, Carlos Ramos and Guadalupe-

Lechuga's motions to quash service of summo

ns and to set aside default judgment against

them. We find no merit to these @laims and-

affirm the judgment,

I. Order Granting Summary Judgment.

A. Background

On July 15, 1992, FMC terminated plaint-

tiff's employment. Plaintiff filed a grivan

ce with his union under the collective bar

gaining agreement with FMC, and the matter-

was submitted to final and binding arbitra-

tion. On April 27, 1993, the arbitrator --

found plaintiff had deliberately violated -

FMC's Rules (safetely) regulations, rejected

plaintiff's explanations as not credible, -

and concluded he had been discharged for ----

just cause,

On December 30, 1993, plaintiff filed -

a complaint against FMC and various FMC su

pervisors personnel, asserting several Cau

ses of action, all of Which were essentialy

based on a claim of wronful treatment and-

termination. FMC removed the case to federal

district court, arguing that all Claims --

“essentially allege a breach of the collec

tive bargaining agreement" and thus were —

preemted by the Labor Management Relations-

ACT (LMRA), 29U.S.C. §301.

Plaintiff moved to remand the case to -

state court. The district court found that-

"[a]lthough Plaintiff's complaint is ram --

bling and unfocused and it is difficult to-

ascertain the precise nature of his Claims, -

at oral argument plaintiff unequivocally --

Stated that his only claim was that he was -

App. 3

terminated in violation of public policy for

reporting drug use at FMC." The court found

that this claim was not preempted by the LMR

because it transcended his employment rela--

tionship and did not involve interpretation-

of the collective bargaining agreement. In a

footnote, the court opined that in future --

proceedings, plaintiff should be held to his

"stipulation" that his only claim was wrong-

ful termination in violation of public poli-

cy. Thus, the court granted plaintiff's mo-

tion and remanded this cause of action.

Once the matter returned to the superior

court, FMC moved for summary judgment. ON --

March 7, 1995, the trial court granted FMC's

motion on several grounds: (1) plaintiff --

failed to file a separate statement of undis

puted material facts as required by Code of-

Civil Procedure section 437c, subd. (b); (2)

plaintiff failed to establish a triable issue

concerning any of FMC's undisputed facts, --

which establish that he was terminated for -

good cause; (3) plaintiff's action is barred

by the one-year statute of limitations in Co

de of Civil Procedure section 340, dubd. (3);

and (4) plaintiff failed to establish a cons

titutional or statutory basis for the public

policy underlying his claim of wrongul termi

nation,

App. 4

B. Applicable Principles

To suceed at _trial on his complaint, --

plaintiff would have borne the burden to --

establish a prime facie case of wronful ter

mination in violation of public policy, in-

particular, that he was fired for complai--

ning about alleged drug distribution and --

and use by others. If he could have done--

so, then the burden would have shifted to -

FMC to show a lawful basis for its decision

If it could have done so, then plaintiff --

would have borne the burden to show that the

proffered reason was pretextual.

In the context of a motion for summary-

judgment, the burdens are somewhat reversed

To succeed, FMC bore the tnitial burden of-

showing that plaintiff's action had no meri

( § 437c, subds. (a) and (o)(2).)

c. FMC's showing in support of it

motion.

To meet its burden, FMC Submitted a --

statement of indisputed facts, indicating-

that the terminated-plaintiff for insubord:

nation and causing two chemical spills. I}

support of its statement, FMC submitted the

declaretions of Carlos Ramos, Gerald Ceder.

holms, and Susan Burr.

Ramos was the "Manufacturing Human Res«

rrces Representative" at FMC, “responsible

for dealing with all aspects of labor and e

App. 5

ployment relations," and was involved in --

investigating the incidents that led to ---

plaintiff's termination. In his declaration

to which he attached corroborating documen--

tary support, Ramos summarized plaintiff was

suspended for two weeks for insubordination

i.e., Refusal to obey a direct and reasonable

order without good or sufficient cause." --

In May 1991, plaintiff was involved in an al

tercation with another employee, for which -

both employees were disciplined. At a subse-

quent disciplinary meeting, plaintiff threat

ened Ramos and another employee and, as re--

sult, was suspended for three days.

On May 8, 1992, plaintiff caused 3,000 -

gallons 6f acid solution to spill by turning

on a water valve to a tankand then leaving --

the tank unattended. The spill required 50 to

60 hours to clean and cost $3,000. Under FMC

rules, only trained personnel are allowed to-

handle valves, and plaintiff did not have the

proper training. Moreover, he refused to acept

responsability for the spill. On May 20, --

1992, he was issued a written final warning.

On June 1, 1992, plaintiff caused a se--

cond spill of 1,600 gallons of acid solution

again by turning on a water valveand leaving

the area unattended. Ramos investigated the-

“the incident, meeting with plaintiff and the

] union stewgrd. Ramos found that plaintiff --

- J decided to turn on the valve without first --

talking to his supervisors. Plaintiff was sus-

App. 6

pended pending a more complete investiga---

tion.

During the week of June 10, 1992, Ramos-

was forwarded a letter plaintiff wrote to --

FMC supervisor Brenda Giamanco on May 17, --

1992, several days after the first chemical-

spill. Ramos found the letter difficult to -

understand but to him it appeared plaintiff-

was alleging that drugs were being distribu

ted in his work area. Ramos investigated the

allégation, spoke with each of the employees

mentioned in the letter, and concluded there

was no basis for plaintiff's suspicions.

In his declaration, Ramos further asser

ted that the substance of plaintiff's letter-

was aired at the arbitration hearing and at

that time plaintiff had no concrete evidence

of drug use or distribution and said he based

his letter on suspicions. Ramos further dela

clare that FMC does not retaliate against --

employees who provide information on drugs -

"hotline" to hear about empioyees' concerns.

On July 15, 1992, FMC conducted a disci-

plinary action meeting to review the investi

gation concerning the June 1 chemical spill.

Present were plaintiff, David Escobedo, Ceder

holm, Ramos, and David Lee. The investigation

revealed that plaintiff had failed to contact

approprate supervisory personnel prior to the

spill, deliberately turned on a water vaive -

App. /7

even though he knew he was not supposed to-

do so, then left the area. When asked why -

he did not notify Lee's, a supervisor, =---

plaintiff said he did not think of it and -

would not have done so if he had. Based on--

its investigation, the prior spill, and pla

intiff's overall record, FMC decided that -

termination was the appropriate disciplinary

action.

On July 15, 1992, Ramos notified plain-

tiff in writing that his employment was --

terminated because of the two spills and --

previous suspension for disruption, failure

to follow supervisory personnel, and inabili

ty to work with fellow employees.

Gerald Cederholm was tha Paint and Proce

ssing general Manager, under whom plaintiff

worked. In his declaration, he stated that-

on May 8, 1992, he met with plaintiff, the --

union steward, several supervisors and se--

nior CAD plater Peter DeLara to discuss an-

incident that occurred the day before. On -

that day, supervisors Tom Silva and David--

Lee investigated problems plaintiff was ha

ving with “loud popping on the automatic -

CAD plate line." DeLara said the problem --

arose because plaintiff had incorrectly loa

ded parts. Plaintiff insisted there was --

something wrong with the tank. However, a --

check by supervisors revealed nothing wrong

i ee

App 8

with the tank aNd that the parts when pro--

perly loaded, the popping sound ceased. When

Lee told plaintiff to load the parts the way

DeLara instructed, a shouting match ensued.

Concerned about a physical confrontation, --

supervisor Silva removed plaintiff from the-

work area for the rest of the shift. At the--

meeting on May 8, plaintiff said he would not

take orders from DeLara, and when Cederholm-

told him he had to obey*his supervisors and -

DeLara, plaintiff walked out of the meeting,

Cederholm further declared that later on-

May 8, plaintiff caused the first chemical --

spill. Cederholm offered to lessen the propo

sed disciplinary action if plaintiff accepted

some responsibility for the spill, but plaint

tiff adamantly refused,

On June 1, 1992, plaintiff caused a second

spill by turning a tank valve, even though su

pervisor Lee had told him not to touch the val

ves. Thereafter, Cederholm concurred in the de

cision to terminate plaintiff's employment.

Susan Burr, FMC's attorney, submitted a -

declaration; attached to which were excerpts ~-

of testimony from the arbitration hearing. In

one excerpt, a FMC witness testified that he-

saw “mysterious contacts" between DeLara and

others in his work area. However, he never -

Saw any employee using, possessing, or selling

drugs in his presence.

App. 9

On its face; FMC‘s showing was suffici--

ent to make a prima facie case for summary-

judgment. The documentary evidence and decla

rations establish without internal inconsis

tency or contradiction that after investiga

tion and disciplinary hearings. FMC determi

ned that plaintiff was responsible for two--

chemical spills and these toghether with a--

prior suspension for insubordination became

the basis for plaintiff's termination.

D. Plaintiff's Counter Showing and FMC's

Responses

Under these circumstances, it became-=-

necessary for plaintiff to demostrate either

by additional facts or legal argument that -

there was a triable issue as to a fact mate-

rial to FMC's showing or that FMC's express-

reason for terminating him was pretextual and

the real reason was retaliation for reporting

alleged drug use and distribution in his area.

For this purpose, speculation that FMC"s rea

sons were pretextual is insufficient to avert

summary judgment.

In oposition to FMC's motion, plaintiff -

filed what purported to be a separate state--

ment of undisputed facts in opposition to --

FMC's motion. He did not agree or disagree -

with FMC's statement of facts. Instead, he --

presented a list of facts he considered undis

puted. Among them are that in 1991, he compla

ined about drug distribution to three supervi

sors, none took action, and "his conditions -

App. 10

6f employment changed[.]" The rest of the --

facts in plaintiff's statement are either --

irrelevant or provide exculpatory versions -

of the incidents that led to the various di-

sciplinary measures taken against him. In --

his paper, however, plaintiff admits turning

the valves on tanks that resulted in spills.

Plaintiff's statement was supported by a long

rambling declaration, which he did not subs-

cribe under penalty of perjury.

In response, FMC asserted, among other

things: plaintiff failed to comply with=-

the procedural requirements of a proper sta

tement of undisputed facts in section 43/7c,

subdivision (b); the facts plaintiff asser-

ted were largely irrelevant and immaterial,

and failed to suggest that the reasons for-

termination were pretextual; and the alleged

facts were not supported by a legally ade--

quate declaration.

In his reply, plaintiff argued that it -

was unnecessary to dispute FMC‘s separate --

statement of facts because (1) appear in ---

this action, Ramos declaration was unrelia

ble, (2) Ramos failed to appear in this --

action and (3) FMC had failed to meet its--

initial burden of proof. He further argued

that his requirements. On the date for the

hearing, plaintiff requested and was gran--

ted a continuance, his second, so he could

submit more complete opposition.

Thereafter, plaintiff filed a response--

1S i BMT coh hisie it

App. 11

to FMC's separate statement. Plaintiff admi

tted two of FMC's undisputed facts: he re-

ceived no training appropriate to those who

handle tank valves and he filed his lawsuit

on December 30 1993. Plaintiff labeled "spe

culative" the fact that binding arbitrator-

occurred on February 2, 1993, before Arbitra

tor Alexander Cohn, who found that FMC“had -

discharged plaintiff for just cause. However

as noted above, these facts are indisputably

establishéd by the arbitrator's findings. As

to the remaining 44 facts, plaintiff simply-

labels them "Incorrect Statement." Plaintiff

also filed essentially the same set of alle-

gedly undisputed facts he had previously fi

led.

E. Failure to comply with §437c, Subd. b.

Under section 437c, subd. (b), the trial

court has discretion to grant a summary judg

ment motion when an opposing party fails to-

comply with the requirement of a separate --

Statement of undisputed facts. (Blackman v.

Burrows (1987) 193 Cal. App. 3d 889, 893.)

“In this setting, as in others involving the

exercise of discretion, it is not the func

tion of an appellate court to substitute -

its own view as to the proper decision, Ra-

ther, an abuse of discretion by trial court

must be shown --action which is arbitrary -

Or capricious or without any basis in rea--

son." (Ibid).

Here, FMC filed a proper statement of -

App. 12.

undisputed facts, listing in numbered para

graphs without argumentation each material--

fact necessary to entitle it to summary ---

judgment and supporting each fact with appro

priate references to the evidence which crea

tes a dispute, i.e., triable issue of the --

fact. (Blackman v. Burrows, supra, 193 Cal.

App. 3d. at pp. 895-896.) However, despite-

being given two continuances to prepare pro

per and adequate response, plaintiff filed -

opposition that provided no record referen-

ces in his own statement of facts do not co

rrelate with FMC"s statement so as to create

triable issues concerning FMC's facts. Ina

ddition, plaintiff's declaration was not --

competent to support his own statement of -

facts because it was not subscribed under-

penalty of perjury. (see §§437c, subd. (d),

and 2015.5.)

In short, plaintiff failed to provide-

the trial court with any proper or appro---

priate guidante by whith it could evaluate

the basis of plaintiff's disagreement with

FMC's asserted facts or determine whether--

there was a triable issue concerning them.

Under the circumstances, the trial court --

was reasonably justified in basing the ot-.

der granting FMC's motion for summary judg

ment on plaintiff's failure to comply with

the procedural requirements.

App 13

In addition to the procedural defects -

in plaintiff's oposition, we further conclu

de that he failed to raise a triable issue-

concerning FMC's stated reasons for termina-

tion or present sufficient evidence to raise

a triable issue concerning FMC's stated rea-

sons were pretextual. In this regard, we note

that plaintiff did not deny he was involved

in an incident with a fellow employee that -

resulted in disciplinary action or that he-

turned tank valves that resulted in chemical

spills. Indeed, he admitted turning valves--

and being unqualified to do so. Nor did he *-

deny making statements attributed to him du-

ring disciplinary meeting ,and he admitted--

telling FMC supervisory personnel that he -0.-.

would not take direction from a fellow emplo

yee despite being told to do so. At most, --

plaintiff's showing reflects his factual disa

greement with FMC's investigation concerning

the various incidents and his responsibility-

therefor. However, a dispute over whether the

circumstances justified the disciplinary ac--

tions on its own investigation and conclusion

concerning the incidents. In other words, the

issue is not whether the alteged conduct cons

tituted good cause for the disciplinary ac:-<-=

tion but whether the alleged conduct was in -

fact the basis for the disciplinary action.

In addition, although FMC did not deny ---

that plaintiff complained about his suspicion

App 14

of drug use and distribution, plaintiff pre-

sented no evidence showing a causal nexus --

between his complaints and his termination.-

the mere fact that after he complained, he -

was disciplined and later terminated is not-

sufficient to raise an inference that his --

complaints triggered the discipline or that-

the otherwise express reasons for such disci

pline and termination were pretextual. Rather

plaintiff's claim of pretext is based on the

theory that because he did not believe he --

ever did anything wrong while employed, the-

reason for his termination must have been his

complaints about drug distribution. Such a --

theory, however , involves pure speculation--

and conjecture, which is insufficient to make

pretext a triable issue. (Compare Burton v. -

Security Pacific Nat. Bank (1988) 197 Cal. --

App. 3d 972 [factual showing repretext insu--

fficient to establish triable issue] and een

Crosier v. United Parcel Service, Inc. (1983

150 Cal. App. 3d 1132 [same] with Walker v.--

Blue Cross of California (1992) 4 Cal. App.-

4th 985 [showing sufficient]. )

Under the circumstances, therefore, we -

find that plaintiff failed to make a suffi-

cient showing to avert summary judgment. --

Indeed, his Showing do not even suggest that

FMC's prima facie showing was untrue or pre-

textual.

II. Order denying Motion to Compel

In February 1994, while this case was in

App 15

federal court, plaintiff served a request --

for production of documents. On June 20 1994

three days the plaintiff's single cause of-

action was remanded to superior court, the -

federal district court partially granted --

plaintiff's motion to compel discovery. al-

though the case had been remanded, FMC res-

ponded in March 1994 and produced documents-

responsive to all but three categories reque

sted. As to those three, FMC objected. On --

August 1, 1994, plaintiff moved in superior-

court to compel further discovery in respon-

se to its request for production. On sept.-

25, 1994, after a hearing on the matter, the

couzt denied plaintiff's motion as unctear--

and untimely and not in compliance with dis-

covery statutes and rules of court regarding

form and content.

Plaintiff contends he was “barred on his

discovery," by which we understand him to --

contend that the trial court erred in denying

his motion to compel discovery. We disagree.

The trial court is vested with wide dis-

cretion in discovery matters, and its deter-

mination will not be disturbed on appeal un-

less plaintiff establishes as manifest abuse

of discretion. (see Ryan v. Superior Ct. (19

60) 186 Cal. App. 2d 813, 817.)

Plaintiff's argument is unintelligible -

and does not explain how the trial court abu

sed its discretion. Nor could he. Since plai

ntiff considered FMC's response to his reque

App 16

st for production inadequate, incomplete or-

too general, then under section 2031, subd.

(1), he was required to file a motion to com

pel within 45 days. His motion was filed --

five months after FMC's response. It also --

failed to include a declaration indicating a

reasonable and good faith effort at informal-

resolution. (§2031, Subd. (1).)

Under the circumstances, we find no ---

abuse of discretion. Similarly, there was no

abuse of discretion when the_court denied -

plaintiff's renewed motion to compel the same

discovery.

III. Orders Vacating Default and Grant-

4nq ‘Motion to Quash.

On December 21, 1994, the superior Ct.-

clerk, at plaintiff's request, entered de --

faults against defendants Ramos, Cederholm -

and Lechuga. On February 8, 1995, counsel --

for FMC, appearing specially for these defen

dants, moved for relief from default and to-

quash the service of summons. On March 7, --

1995, the court granted the motions,

Plaintiff now contends that the trial Ct.

erred in granting both motions. Plaintiff's

argument concerning each of these motions is

difficult to follow and filled with irrele--

vant information and legal assertions. He --

does not demostrate error or abuse of discre-

tion, and the record before us reveals subs --

tantial factual and legal support for the --

trial Ct.'s orders.

App 17

A. Vacating Default

Section 473 provides, in relevant part---

“notwithstanding any other requirements of-

this section, the court shall, whenever an -

application for relief is made no more than

six months after entry of judgment, is in -

proper form, and is accompanied by an attor

ney's sworn affidavit attesting to his or her

mistake, inadvertence, surprise, or neglect,

vacate any {1) resulting default entered by

the clerk against his or her client, and --

which will result in entry of a default judg

mente, or (2) resulting default judgment or-

4 Kecbtane i

cata in So Sint BP ME ATONE Nt RAI ET Nee

MCI

dismissal entered against his or her ctient-

unless the court finds that the default or-

dismissal was not in fact caused by the attor

ney's mistake, inadvertence, surprise or ne-

Aad ae Cet SN LU ona LD! ome ded ON

5 bp

glect.". (Emphasis added. )

A ruling on a motion for relief froma -

default judgment rests within the sound dis

cretion of the trial court and will not be-

disturbed on appeal absent a clear showing

| of abuse of discretion. (County of Alameda

v. Risby (1994) 28 Cal. App. 4th 1425,)

Defendant's motion was filed within six

months of entry of default judgment and was

accompanied by a proper affidavit from FMC's

attorney. In it, she explained that in Aug.

1994, Joseph Ford of FMC's internal legal --

department told her that copies of summonses

and complaints in this action had been mailed

to FMC. Counsel concluded that service of the

App 18

Summonses and complaints by mail was ineffec-.

tive and wroe plaintiff to inform him of her.

conclusion. She received no response. Later,-

in December 1994. beture defaults were ente-.

red, she attended a case management conferen

ce and informed the court that none of the ir

dividual defendant's had been properly servec

Plaintiff did not respond, and the court con-

tinued the conference on the ground that the

case was not at issue as to all defendants.-

Thereafter, however, the clerk entered the de

faults.

In his declaration, Joseph Ford stated --

that in August 1994, his department received_

three copies of the same summons and complair

The copies were identical and purported to -

serve FMC Corporation only. Ford explained --

that he mistakenly believed the documents hac

been mailed to FMC. He then referred the ma -

tter to outside counsel for FMC, telling her

that the documents had been received by mail.

However, he later learned that they had been-

received by a receptionist in the FMC buil --

ding lobby.

Clearly, the trial court believed the a--

ffidavits supporting the motion and that de

faults entered against the individual defen--

dants were entered in part because FMC's --

counsel mistakenly believed that service of-

the summonses and complaints against them --

had been ineffective. The record also reveal

that the defendants promptly moved for relief

Ne eee a athe

i Sea GN gt AOR sc a EE Ned BEES IE cal inte

we!

Sah 6 ithe ala tine Aa AS NPR ATED He None: aaa BD Net abel tin Sih Saw Awan

to’ erninartae

Nees Te

App 19

from default and plaintiff would suffer no--

prejudice if relief were granted because his

action against the individuals was identical

to that against FMC,

Under the circumstances and given the po

licy that favors trial on the merits (see --

Brochtrup v INTEP (1987) 190 Cal. App. 3d --

323, 329), the trial court was required to -

grant relief. (§437c.)

B. Quashing Summons

The record reflects that the summonses-

delivered to FMC were identical, i.e., copies

of the same summons. Although Ramos, Ceder--

holm, and Lechuga are listed on the top of--

the summonses, the summonses themselves do--

not expresely indicate or even suggest that

any of these people are the persons being --

served, as required by section 412.30. Nor -

do the summonses even appear directed to --

these individuals for purpose of service. --

Rather, the summonses all state that FMC --

Corp. is the person being served under Sec.-

416.10, which prescribes who may be served -

on behalf of a corporation. Given the number

of people listed on the summonses and their-

failure to identify any of the individual --

people as the persons served, the summonses-

were fatally defective, for they did not ---

substantially comply with the statutory re--

quirements.

The record further reveals that defendant

App 20

had left FMC's employ approximately one year-

before the summonses were delivered to FMC &

did not maintain a bussines address at the--

FMC building and was not physically present--

therein. There is no evidence that Lechuga &

FMC continued to have a business relationship

oror that FMC qas authorized to accept servi

ce on Lechuga's behalf. Under this ¢ircumstan

ces, purported service on Lechuga via FMC was

improper and did not comply with section 415.:

SUBDIVISION (b), which permits service at a --

person's "dwelling hose, usual place of abode-

usual place of business, or usual mailing ---

address'...in the presence of a competent mem-

ber of the household or a person apparently -

in charge of his or her office, place of busi-

ness or usual mailing address.....

Disposition

The judgment is affirmed.

(TYPED)

wunderlich, J.

WE CONCUR:

Premo, Acting P.J.

Elia, J.

oA.

= Flores v. Fmc Corporation

HO13825.

(NO SIGNATURES ON DECISION).

App 21

IN THE COURT OF APPEAL OF THE STATE OF _

CALIFORNIA. SIXTH APPELLATE DISTRICT.

Moctezuma Flores

plaintiff and Appellant, )

VS. )

FMC DORPORATION et. al.

defendants and Respondents.

Superior Court no. 737313

(FILED MAY 9 1996)

BY THE COURT*

The appellant's petition for rehea

ring is denied.

(SEALED)

MAY 9 1996 (SEALED)

/s/ PBBMQ,_d. ACTING P.J.

* Before Premo, Acting p.j., Elia, J., and

Wunderlich, J.

App 22

Sixth Appellate District No. H013825

S053843

IN THE SUPREME CT. OF CALIFORNIA.

MOCTEZUMA~ FLORES, AppélIiant

Vv.

FMC CORPORATION Et Al.,

Respondents

(SUPREME CT. FILED JULY 22 1996).

The time for granting or denying review

in the apove cause is hereby extended to -

and including August 26, 1996, or the date--

upon which review is either granted or de

nied,

/s/ George

Chief Justice

App 23

Sixth Appellate District No. H013825

S$053843

IN THE SUPREME COURT OF CALIFORNIA

MOCTEZUMA FLORES, Appellan

Vv.

F M C CORPORATION Et Al.,

Respondents

(SUPREME COURT FILED AUGUST 14 1996).

Petition for review DENIED.

(SEAL)

/s/ George

Chief Justice

App 24

FMC GROUND SYSTEMS DIVISION SAN JOSE.

(CORRECTIVE ACTION)

Date: 5/22/91

Dept. 8745: written warning.

(HANDWRITTEN )

Interfering with others in the performan

ce of their job. Unwilling to share company

fork-lift. (5-2191)

Carlos Ramos 5/21/91.

/s/ 5/21/91.

Arthur Balandra.

App 25

FALSE CORRECTIVE ACTION SUBMMITTED TO

COURT BY CARLOS RAMOS,

(Such unintelligeble written that --

plaintiff is and was unable to follow).

App. 26.

INVESTIGATION OF THE UNION IN REGARD_

TO RAMOS ACCUSSATIONS TO PLAINTIFF OF

HAVING INJURED AN EMPLOYEE WHO WAS HOSPI-

TALIZED IN THE ACT.

June 28 1992.

(TYPED) Grivance #91-021

A meeting was held at 3:20 p.m. on June

27 1991 concerning your grivance No. 91-021.

Right after the Union Caucus, and on re

quest of yours, Sister Theresa Miller con-

ducted an investigation regarding a disagree

ment between you and Brother Dave Ruano. For

that purpose, Sister Theresa separately in--

terviewed the two eyewitnesses: Sister Maria

E. Rodriguez and Sister Melaine Chung. and --

both ladies testified that:

“While Mr. Flores was driving a fork-lift,

Mr. Dave Ruano took possession of Mr. Flores

set of keys and ran outside laughing. That the

more Mr. Flores requested his keys back, the

louder Mr. Ruano laughted of him. Finally, Mr.

Ruano threw the keys at Mr. Flores feetand--

even when Mr. Flores was walking away from -

the scene, Mr. Ruano continued laughing --

very loud and with a very red-face.

Both ladies were asked if Mr. Flores had

touched Mr. Ruano at any time and both said:

NO!

/s/ John Decarli.

Wall

App. 2/7

ACTION TAKEN BY A QUALIFIED JUDGE OF THE

STATE OF CALIFORNIA AGAINST FMC's ACTS _

AND WHICH FMC OVERLOOKED AND IGNORED.

TYPED DETERMINATION.

CALIFORNIA UNEMPLOYMENT INS. BOAR.

Case # SJ-00674

STATEMENT OF FACTS

In May 1992, claimant was assigned to

work area that he had not been previously -

assigned to and in which he had no experien

fhe claimant testified that: "he was unable

to perform his work because the air imput--

into the tank was too highand if he had ---

attempted to do plating the the solution --

would have splashed in the face and caused--

him injury. He turned a vgqlve slightly to --

try to reduce the flow of air but when it --

was apparent that the valve was the wrong one

(claimant had not been instructed with regard

to these valves) he returned the valve to its

original position. The employer maintained --

that the claimant had caused a 3200 gallons--

spill and issued the claimant a final warning.

On June 1 , claimant was again assigned-

to an area in which he had no prior experien

ce.

App. 28

REASON FOR DECISION

(Misconduct)

"miscondutt connected with the work"

as a substantial breach by the claimant of

an important duty or obligation owed the --

employer, willful or wanton in character,

and tending to injure the employer.

On the other hand, mere ineffiiency,

incapacity, isolated instance, inadverten

ceor good faith errors in judgment or dis

cretion are not misconduct.

In this case there is no evidence of --

any wilful or intentional disregard of the

employer's interest on the part of the cli-

mant. While employer may have some justi-

fication for its decision to terminate the

claiment, the evidence falls short of esta

blishing misconduct.

DECISION

The departament determination is re--

versed.

Administrative Law Judge.

App. 29.

DOCUMENT RELEASED BY GERALD CIDERHOLMS

WHEN ASKED BY SUPERVISOR DAVID LEE TO __

LOWER CORRECTIVE ACTION OF "FINAL WARN

NING FOR BEING SO UNJUSTIFIED.

Date of spill 5-8-92. Time: 6p.m.

CAUSE OF SPILL AND CORRECTIVE ACTION

TAKEN .

(handwritted)

Swing shift operator went to tank 15--

to turn on air. By mistake he turned on the

water. He walked away from tank.

STATE NAME OF EMPLOYEE INVOLVED AND EX

PLAINE HOW

(handwritted)

Montazuma Flores.

wHAT ACTION HAS BEEN?WILL BE TAKEN TO PRE

VENT A RECOURRENCE OF THIS TYPE OF SPILL--

(i.e. procedual changes,

training, discipli

nary action, equipment upgrade(s) etc. be

specific) ?

(handwritted)

Held meeting with both shifts.

App 30.

Discip;inary actionFinal warning).

When will the corrective action(s) be

completed.

(handwritted)

Upon Flores return to work.

Name of production supervisor (print)

G. W. Cederholm

Signature of production Supervisor.

/s/ Ga Ciderholm.

App 31

ORDER GIVEN TO FMC AT THE DISTRICT Ct.

BY JUDGE INFANTE AND DISOBEYED BY FMC,

United States District Ct. for

the Northern District of Calif.

Moctezuma Flores. olaintiff

Vv.

FMC Corp. defendant

(sealed) FILED: June 20 1994

(Order granting in part).

Plaintiff Moctezuma Flores' Motion to--

Compel Production of documents was heared --

on June 20, 1994. Plaintiff appeared in pro--

pia persona. Christopher martin, Esq of ---

Dunn & Crutcher appeared on behalf of defen-

dant FMC Corp. Having reviewed the moving &

Opposition papers, considered the comments--

of Messrs. Flores and Martin, and good cause

appeareing, plaintiff's motion is granted in

part, as follows.

IT IS HEREBY ORDERED THAT:

On or before July 1, 1994, FMC shall --

produce documents responsive to plaintiff's

Request for Production Nos. 1, 2, 3, 4, 6,

4, @,. 9, ane se,

tienen

App 22

Si In response to Request for Produc

tion No. 4, FMC shall produce personnel and-

employee manuals that were in effect at ehe

time of plaintiff's discharge.

b. In response to Request for Produc--

tion No. 10. FMC shall produce its organiza

tional charts that were in effect in 1992 -

and that pertain to plaintiff's employment -

at FMC's San Jose Grund $ystems Facility.

Ze Plaintiff's motion is denied with -

respect to Request for Production Nos. 5, --

1° and 12.

IT IS FURTHER ORDER:

a On or before July 1 1994, Plaintiff

shall disclose to FMC the names addresses -

and telephone numbers, to the extent known,

of all persons having knowledge of his claim.

4, FMC shall comply fully with General

Order 34, paragraph 7.

De The parties are relieved from com--

plying with all other provisions of General

Order 34.

IT IS SO ORDERED.

DATED: June 20, 1994.

/s/ Edward A. Infante

(typed) Edwerd A. Infante

U.s.Magistrate Judge

App a3

SUMMONS SERVED ON THE THREE INDIVIDUAL

DEFENDANTS.

Notice to defendant. (Aviso al atusado)

FOOD MACHINERY CORP. JERRY

CIDERHOLM, CARLOS RAMOS,

GUADALUPE LECHUGA AND DOES

1-30 INCLUSIVE.

YOU ARE BEING SUED BY PLAINTIFF:

(A usted lo esta demandando).

Flores, Moctezuma.

You have 30 CALENDAR DAYS after this sum--

mons is served on you to file a typewritten

response of this court.

A letter or phone call will not protect --

you; your typewritten response must be in -

proper legal term if you want the court to-

hear you case,

If you do not file your response on time, -

you may lose the case, and your wages, money

and property may be taken without further --

warning from the court.

There are other legal requirements. You may-

want to call an attorney right away. If you

do not know any attorney, you may call an

attorney referal service or a legal aid offi

ce (listed on the phone book).

App 34

The name and address of the court(s)

SUPERIOR COURT OF CALIFORNIA, SANTA CLARA

COUNTY.

191 No. First Street.

San Jose, Calif. 95113.

Name and address of plaintiff:

Moctezuma Flores

984 Prevost St.

San Jose, Ca. 95125.

(sealed)

Grace Kiyamara.

irk by: /s/__Smith.

Date: Dec 30 1993

seal big seal on the

left bottom side.

App 35

DECLARATION OF REASONABLE DILIGENCE

I the undersigned are and was on the dates --

herein mentioned, over the age of eighteen--

years and not a party of the action, and I de

clare that before using substited service --

under C.C. P? 415.20(a) , 41520(b), I dili--

gently attempted to personally serve the de-

fendant. CARLOS RAMOS

2830 and 1020 De la Cruz Blvd. Santa Clara,--

Ca. as follows:

11-294; 11-3-94 and 11-3-94

Time: 1:58pm; 1:58pm and 2:08pm.

1020 De la Cruz is not appropriate for servi

ce. Relocated party to 2830 De la Cruz, Sta.

Clara, Ca. Substituted service on a natural--

person per CCP 415.20b, per company policy, -

personal service is not allowed. Company will

only allow service under CCP 415.20b and de-

fendants home address is unknown or is no lon

ger current.

Person servins: Ron Gardiner (typed)

Registered California Process server.

Date: 2-13-95.

/s/__Ron_ Gardiner

APP 36

PROOF OF SERVICE RENDERED TO THE THREE _

INDIVIDUAL DEFENDANTS.

Proof of Service

1. At the time of service I was at least--

18 years of age and-not a party to this ac--

tion, and I served copies of the:

SUMMONS AND COMPLAINT" NOTICE OF THE CASE --

MANAGEMENT CONFERENCE, LOCAL RULES 6,7,8. -

NOTICE TO LITIGANTS: BLANK CASE MANAGEMENT -

CONFERENCE QUESTIONAIRE AND AT-ISSUE MEMORAN

DUMY BLANKSTIPULATION AND ORDER RE CIVIL --

SHORT CAUSE MATTER:

2. Party served CARLOS RAMOS

Person Sereved: YOLANDA CLARKE

AUTHORIZED AGENT

2830 DE LA CRUZ FMC

(Business)

Santa Clara, Ca.

3. I Served the party named in item 3

b. By leaving the copies with or in the pre

sence of (1) (business) a person at least

18 years of age apparently in charge at --

the office or usual place of business of--

the person sereved. I informed him or her-

of the general nature of the papers.

(3) On 08/17/94; (4) at 01:45pm; (5)

A declaration of diligence is attached;

CG. by mailing the copies to the person ser--

ved, addressed as shown in 2c, by first class

mail, postage prepaid. (1) on: 08/22/94. (2)

from San Jose, Ca.

App 37

DECLARATION Or REASONABLE DILIGENCE

I the undersigned are and was on the dates --

herein mentioned, over the age of eighteen--

years and not a party of the action, and I de

clare that before using substited service --

under C.C. P? 415.20(a) , 41520(b), I dili--

gently attempted to personally serve the de-

fendant. GERALD CEDERHOLM

2830 and 1020 De la Cruz Blvd. Santa Clara,--

Ca. as follows:

11-294; 11-3-94 and 11-3-94

Time: 1:58pm; 1:58pm and 2:08pm.

1020 De la Cruz is not appropriate for servi

ce. Relocated party to 2830 De la Cruz, Sta.

Clara, Ca. Substituted service on a natural--

person per CCP 415.20b, per company policy, -

personal service is not allowed. Company will

only allow service under CCP 415.20b and de-

fendants home address is unknown or is no lon

ger current.

Person servins: Ron Gardiner (typed)

Registered California Process server.

Date: 2-13-95.

/s/__Ron_ Gardiner

APP 36

PROOF OF SERVICE RENDERED TO THE THREE _

INDIVIDUAL DEFENDANTS.

Proof of Service

1% At the time of service I was at least--

18 years of age and not a party to this ac--

tion, and I served copies of the:

SUMMONS AND COMPLAINT" NOTICE OF THE CASE --

MANAGEMENT CONFERENCE, LOCAL RULES 6,7,8. -

NOTICE TO LITIGANTS: BLANK CASE MANAGEMENT -

CONFERENCE QUESTIONAIRE AND AT-ISSUE MEMORAN

DUM” BLANKSTIPULATION AND ORDER RE CIVIL --

SHORT CAUSE MATTER:

rm Party served GERALD CEDERHOLM

Person Sereved: YOLANDA CLARKE

AUTHORIZED AGENT

2830 DE LA CRUZ FMC

(Business)

Santa Clara, Ca.

3. I Served the party named in item 3

b. By leaving the copies with or in the pre

sence of (1) (business) a person at least

18 years of age apparently in charge at --

the office or usual place of business of--

the\ person sereved. I informed him or her-

of the general nature of the papers.

(3) On 08/17/94; (4) at 01:45pm; (5)

A declaration of diligence is attached;

Ca by mailing the copies to the person ser--

ved, addressed as shown in 2c, by first class

mail, postage prepaid. (1) on: 08/22/94. (2)

from San Jose, Ca.

App 39

DECLARATION OF REASONABLE DILIGENCE

I the undersigned are and was on the dates --

herein mentioned, over the age of eighteen--

years and not a party of the action, and I de

clare that before using substited service --

under C.C. P? 415.20(a) , 41520(b), I dili--

gently attempted to personally serve the de-

fendant. GUADALUPE LECHUGA

2830 and 1020 De la Cruz Blvd. Santa Clara,--

Ca. as follows:

11-294; 11-3-94 and 11-3-94

Time: 1:58pm; 1:58pm and 2:08pm.

°1020 De la Cruz is not appropriate for servi

ce. Relocated party to 2830 De la Cruz, Sta.

Clara, Ca. Substituted service on a natural--

person per CCP 415.20b, per company policy, -

personal service is not allowed. Company will

only allow service under CCP 415.20b and de-

fendants home address is unknown or is no lon

ger current.

Person servins: Ron Gardiner (typed)

Registered California Process server.

Date: 2-13-95.

/s/__Ron Gardiner

App 40

PROOF OF SERVICE RENDERED TO THE THREE

INDIVIDUAL DEFENDANTS.

Proof of Service

Te At the time of service I was at least--

18 years of age and not a party to this ac--

tion, and I served copies of the:

SUMMONS AND COMPLAINT" NOTICE OF THE CASE --

MANAGEMENT CONFERENCE, LOCAL RULES 6,7,8. -

NOTICE TO LITIGANTS: BLANK CASE MANAGEMENT -

CONFERENCE QUESTIONAIRE AND AT-ISSUE MEMORAN

DUMY BLANKSTIPULATION AND ORDER RE CIVIL --

SHORT CAUSE MATTER:

ne Party served GUADALUPE LECHUGA

Person Sereved: YOLANDA CLARKE

AUTHORIZED AGENT

2830 DE LA CRUZ FMC

(Business)

Santa Clara, Ca.

3. I Served the party named in item 3

b. By leaving the copies with or in the pre

sence of (1) (business) a person at least

18 years of age apparently in charge at --

the office or usual place of business of--

the person sereved. I informed him or her-

of the general nature of the papers.

(3) On 08/17/94; (4) at 01:45pm; (5)

A declaration of diligence is attached;

C. by mailing the copies to the person ser--

ved, addressed as shown in 2c, by first class

mail, postage prepaid. (1) on: 08/22/94. (2)

from San Jose, Ca.

App 41

NOTICE OF CASE MANAGEMENT CONFERENCE --

SENT TO THE THREE INDIVIDUAL DEFENDANTS

RE" FLORES vs FOOD MACHINERY CORP.

NOTICE OF CASE MANAGEMENT CONFERENCE

A Case Management Conference has been sche-

duled for the above entitled Case and all -

parties are directed to appear in this Ct.-

on: Date: 10/18/94 at 10:00 AM in Dept.17

At: Superior Court, 191 No. First St. S.J.

1. You must file and serve a completed "--

“Case Management Conference Questionaire--

and at Issue Memorandum at least 10 calen

dar days prior to the above scheduled conf.

2. Counsel for each party and each self-re--

presented party shall attend the conference

and be fully prepared to participate effecti

vely.

3. Compliance with all Local Rules of Court

is required.

For further information, contact the Calen--

dar office, (408) 299-2618.

(see attached for additional parties)

Parties and/or Attorneys of Record:

Gibson Dunn and Crutcher- Menlo Park

Moctezuma Flores,

At: San Jose, Calif. on 07728794.

(typed) Stephen V. Love, Clerk by Karen S.

Sanguinetti, Deputy.

App 42

ANGRY-LETTER_ SENT TO PLAINTIFF BY ATTRNYS.

FOR SERVICE MADE TO INDIVIDUAL DEFENDANTS

Gibson, Dunn and Crutcher (Lawyers)

3000 Sand Hill Rd. Bldg. 1 suite 285

Menlo Park, Califf 94025.

(408) 926-7300

August 24, 1994

Mr. Moctezuma Flores.

San Jose, Calif. 95125.

RE: Flores v. FMC Corporation

Dear Mr. Flores:

We recently received a copy of a set of

papers you mailed to FMC's post office box--

addressed to Carlos Ramos. Apparently you are

attempting to serve Mr. Ramos with a Summons

and Complaint in this action.

Please be advised that your attempted --

service on Mr. Ramos is not in compliance --

with the California Code of Civil Procedure,

and we do not consider service to have been-

affected, nor have we been authorized to --

accept service on Mr. Ramos behalf. As we --

have previously notified you, neither of the

other two individually-named defendants has -

been properly served, and FMC Corp. is there

fore the only defendant that has been served

_— and has appeared in the action.

Very truly yours,

/s/ Susan B. Burr.

(typed) Susan B. Burr.

App. 43

vi DEFENDANT JERRY CIDERHOLMS RESPONDING

AS PARTY OF THE ACTION

U. S. DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA

Moctezuma Flores. plaintiff

FOOD MACHINERY CORP,

No. 94-20073 RMW.

DEFENDANT JERRY CEDERHOLMS WRITTEN RESPONSE

TO PLAINTIFF's FIRST REQUEST FOR PRODUCTION

OF DOCUMENTS

Propounding Party: Plaintiff Mr. Flores.

Responding Party: Defendant Jerry Cederholm

Set Number ONE 91)

TO PLAINTIFF MOCTEZUMA FLORES:

GENERAL OBJECTIONS TO ALL REQUESTS

A. Defendant objects to the Rrequest for

Production of Documents, on the ground that _

the identical requests have been propounded--

to defendant FMC Corp., and are therefore --

duplicative and extremely burdensome in that

any documents in the possession, custody or--

control of the individual defendant would be

App 44

in the possession, custody or control of --

the corporate defendant and would be inclu--

ded in the response of FMC to the request -

for production to the extent not otherwise--

objectionable. Defendant Cederholm therefore

will not separately respond to the requests

propounded herein, and hereby states the ---

objection on this ground, which is in addi

tion to the objections stated in the response

of defendant FMC to the same request.

SPECIFIC OBJECTIONS AND RESPONSES

RESPONSE TO REQUEST Nos. 1-12:

See General Objection A above.

DATED" March 23, 1994

GIBSON, DUNN AND CRUTCHER"

(typed)

/s/ Susan B.-- Burr

Attorneys for Defendant FMC

Corporation.

App 45

GRIVANCE FILED AGAINST SUPERVISOR

FOR NOT CALLING THE EMERGENCY RES

PONDING TEAM DURING FIRST SPILL.

NAME: Moctezuma Flores.

Agreement Reference section.

Section 2(A)(C)(D). Section 17.

(Unjust write-up)

(handwritted)

Mr. Flores was wrote up a final warning

for an accident in plant 6 area on 5-8-92.

This spill was an acid and water spill. He

never was trained on the phosphate tank and

was put to work there unsupervised. When Mr.

Flores went to work at the phosphate tank --

the air pressure was too high so he tried to

lower the air pressure, on this tank there -

is a air adjustment and a water adjustment -

valve with no markings defining the source -

or on and off direction. So, Mr. Flores did

not know which was air and which was water-

he moved one valve and found it was the wrong

valvebecause the air pressure did not change

so Mr. Flores put that valve back to the posi

tion it was in. Then he moved the other valve

which was the correct one and he lowered the

air pressure and there was no one around to

ask for help , about 10 minutes later another

APP. 46

employee informed Mr. Flores about the sptil

and this was not

had no training

marked with the

tions. After the

all his fault because he--

on these tanks are not ---

source and on or off posi- |

spill ERT (Emergency Respon

ding Team) was not called which is the pro--

per procedure for safety purposses. Mr. Flo-

res is taking all the blame for this acci --

dent when the company would have done things

to prevent this from happening.

Relief requested.

1 Mr. Flores warning pull.

ae Offer training to employees before assi

gning them to work in unfamiliar jobs.

Ja Mark valves

with air, water, source and

make water visible coming out of pipe to

prevent this from happening again.

4. When a spill occurs follow proper safety

procedures and call 5555 and report it-

to the ERT team and security.

Dated: 5-29-92.

/s/ David Escobedo __/s/__Moctezuma Florés.

/s/ David Lee.

5-29-92.

Moctezuma Flores

plaintiff

FMC Corp. Jerry

Ciderholm, Carlos

Ramos, Guadalupe

Lechuga and DOES

1-30 INCLUSIVE

defendants.

UNDISPUTED FACTS

1, In July 1982, after

he had been employed at

FMC for only 10 months,

Flores was suspended for

two weekd for insubordi

nation, the third major-

incident Flores had been

involved in during the -

brief period of his employ

ment.

2. In May 1991, plaintiff

was involved in an alterca

tion with another employee

over a forklift, resulting

in a written warning for’ -

Flores and a suspension for

Declaration of

Carlos Ramos

Delaration of

Carlos Ramos.

Ramos Decl.

App 48

the other employee for

violation of a safety-

rule.

c In a disciplinary

meeting after receiving

the written warning, Flo

res threatened Ramos Say Ramos Declaration

ing I am going to get you

and threatened to Rick &

punch another employee

4. Flores was sent home-

foltowing the incident of-

threatening to kick and to Ramos Decl.

punch an employee, and when Ramos Decl.

he returned to work on May

28, 1991, Flores was given

a three day suspension with

out pay because of the threat.

ae On May 8 1992, Gerald

Cederholm, General Supervisor

met with plaintiff, his union Declaration

shop steward, supervisors Tom of. Gerald

Silva, David Lee and Dee Fox- Cederholm

and Senior CAD Plater Pete DE

Lara concerning an incident

that had occurred the previous

day on plaintiff's shift.

6. According to those present

at the meeting, Silva and Lee

were called to investigate a-- Cederholm

problem plaintiff was having -~*. declaration

with loud popping on the auto

matic CAD plate line, and Delara

stated that the popping was -

caused by Flores having loaded-

the parts incorrectly.

ce A shouting match. had --

erupted when Lee, plaintiff --

supervisor, told him to make - Cederholm

declaration

App 49

sure he loaded the parts

the way Delara had instruc

ted and plaintiff, who was Cederholm

subordinate to Delara, -- Declaration

disagreed with Delara and

became very upset.

8. Plaintiff insisted that

there was something in the -

tank that was causing the -- Cederholm

popping reaction, but when - Declaration

his supervisors checked, they

had found nothing in the tank

rather, as Delara had stated,

plaintiff had loaded the parts

improperly.

Fe After the information was

recounted in the meeting with-

Cederholm, Flores angrily decla Cederholm

red that he would not take any- Declaration

direction from Delara and walked

out of the meeting.

10. On May 8, 1992, Flores --

caused a chemical spill to occur

from a tank holding caustic che Ramos

micals in his work area, by tur Declaration

ning on a water valve to the tank

and inexplicably leaving the tank

unattendea, resulting in an over-

flow of Approx. 3000 gallons of -

acid solution,

LP FMC's emergency team was -

called to contain and clean up the

spill, for an estimated 50 to 60 ~--Ramos _—

man hours of clean up at a cost - Declaration

of over $3,000.

V2 FMC had to file a report with

the Hazardous Material Division of Ramos

the San Jose Fire Department -- Decl.

App 50

describing the spill and

the clean up measures taken.

PP FMC rules require

that only employees who

have had training in com

pliance are allowed to --

hancle the valves on the-

chemical tanks.

14, Flores admitted that

Ramos Declaration

he had never had any trai-- Ramos

ning in compliance. Declaration

15. Flores adamantly re-- Ramos

fused to accept any respon Declaration

Sability for the chemical

spill.

16. Flores was issued a

final warning on May 20, 1992 Ramos

for causing the chemical - Declaration

Spill on May 8.

¥¥0 On June 1, 1992, less

than a month after the firs R ac

chemical spill and only 10- renee ae y

days after having been expli Senne DOSS se

city told not to touch the- ration.

valve on the chemical tank,

Flores again turned on the -

water valve on a tank contai

ning chemical solution left

it unattended, and caused a

second chemical spill of 1,600

gallons of acid.

18. Flores failed to report

the second spill, and 50 to 70 Ramos

man hours were required to -- peclaration

pump out and clean up the spill.

19. Inmediately after the spill

App. 51

Geral Cederholm, the General

supervisor for Flores' dept. panne and Ce

asked Ramos to investigate - derholm 7

the spill as he was very con gecjarations

cerned about the extend of-

the spill and felt discipinary

action was called for.

20. Ramos met with Flores ®~

David Escobedo, Flores' union

steward, during the week of Ramos Declara

June 10, tion.

y During the mecting Flores

stated that he could not find

the compliance person, and had

made no att@émpt -to contact David

Lee, his supervisor, Tom Sitva-

another supervisor, or Pete De-

Sara, lead person.

Ramos Decla

ration.

22. After Fhores finished des

cribing the circumstances of -

the spill from his perspective,

he was suspended pending comple

tion of the investigation.

Ramos Decla

ration.

a3« During the week of June -

10 1992, Ramos learned of a --

letter Flores had written to -

Brenda Giamanco, regarding Flores

suspicions of drug distribuition

in his work area.

Ramos Decl.

24. Although the letter latked

any concrete basis for Flores --

suspicions, the decision was made Ramos

to investigate the allegations - Declaration

of drug distribution prior to --

meeting with Flores regarding the

spill so that the issue could be

resolved separately from any disci

App. 52

plinary action ultimately -

taken in connection with the

chemical spill incident.

25. Ramos Conducted a throough

investigation of Flores’ alle Ramos

gations of drug distribuition Declaration

and spoke with each of the --

employees mentioned in Flores’

letter.

26. After investigation, Ra-

mos conciudgd that there: was: -

no -basis: in fact for plaintiff 's@mos

suspicions.:of drug use in is-

work area.

27. Flores admitted at the arbi

tration heaing of his discharge

_ Declaration

Ramos and

grievance that he had no eviden purr Decla

ce that any drug use or drug

dealing took place, and that he- saat

based his letter on nothing more

than suspicious.

28. There was no further action

taken with respect to Flores’ le Ramos

tter nor did it in any way enter- pecl

into fhe decision regarding Flo-

res disciplinary action for caus

ing the chemical spill.

29. FMC does not retaliate agai

nst employees who bring complaints —

of drug distribution to the atten

tion of their superiors, and in -

fact affirmatively encourages such

conduct and maintains an "ethic--

hotline" for employees to use in--

Burr

Decl.

voicing their concern.

30. On July 15, 1992, a discipli

nary action meeting was held to ---

App 22

review the results of the ins

tigation regarding the June 1-

spill and to implement appropri Ramos

ate disciplinary action. declaration

Sts In the July 15 meeting, -

the Co. discussed its findings-

regarding the chemical spill -- Ramos

that Flores had deliberately -- Declaration

turned on the water valve on --

when he knew he was not supposed

to touch the valves on the tank

and then left the work area long

enough to allow 1,600 gallons of

toxic chemical solution to spill

from the tank, as well as its --

findings that, prior to turning-

the water valve, Flores had had-

the opportunity but failed to --

contact several people for assis

tance.

Lye In the July 15 disciplina-

ry action meeting, Flores admitt24

ed that he never had any inten-- Ramos

tion- of contacting his supervi- Decl.

sor David Lee, and stated ‘the -

guy never did me much good... I

didn's think of him and evén if

I had, I wouldn's have called him.

33 Based on the results of -

the investigation, together with

Flores' overall record, the Co.- Ramos

decided that immediate discharge Decl.

for willful violation of Company

safety rules and of a direct order

was the appropriate disciplinary

action.

34. Ramos notified Flores by let

tter dated July 15, 1992 of the-- psmos

Company's decision to terminate hifec),

employment and the reason for that

action.

App. 54

33 FMC followed its employee

conuuct rules consistently in -

determining the appropriate discRamos

pline to impose for Flors conducbeciaration

36. Flores filed a grivance -

Goncerning the distharge decision R

. ‘ amos

in accordance with the grivance - ),.)

procedures set forth in the collec :

tive barganining agreement (the-

"CBA") in effect between the Union

and FMC.

37. A meeting was held on July -

21, 1992 to discuss the final warn pinos

ings issued to Flores after the - po.)

first spill and his termination as .

result of the second spill.

38. In the July 21 meeting, Flo

res admitted that he knew turning

the air and water valves on the - Ramos

tank was not part of his job. Decl.

39. In the July 21, 1992, grivan

ce meeting Flores made the new --

claim with respect to the May 8 - Ramos

spill that the firs’. bhift, not h@ecl-

had caused the spill.

40. The Company investigated and

confirmed that Flores' charge was- Ramos

insupportable, since, the logs that po.)

record conditions in the containment °

areas at the end of every shift -

showed that the spill could not --

have been caused by the first shift,

since the containment area was empty.

41. Also in the July 21 grievance

meeting Flores claimed for the first

time regarding the June 1 sptll that oe

David Lee and Dee Fox , the shift oo P

pervisor had ordered him to put water

in the tanks.

App. 55

42. Lee and Fox both denied

ever ordening Flores to put - —

water in any tank, and Lee sta neci

ted that he had in fact speci- .

fically told Flores after the-

first spill never to touch the

valves.

43. In the July 21 grivance-

meeting, Flores‘ union business

representative asked him why - Ramos

he did not wait for the compliarecl.

ce person to return instead of

turning the water valve himself,

and Flores had no answer.

44. The July 21 grievance meet

ing ended with an angry outburst Ramos

by Flores, who pounded on the -- Decl.

table, and made an offensive --

remark to Ramos.

45. The Co. denied Flores‘ --

grievance, and the Union requestecamos

that Flores grievance be submmited po).

to arbitration under the terms -

of the CBA.

46. The arbitration hearing con-

cerning plaintiff's grievance --

took place on February’ 2 1993, be Ramos

fore American Arbitration Assoc. Decl.

Arbitrator Alexander Cohn.

47. Testifying at the arbitra--

tion on behalf of FMC were Carlos Ramos

Ramos, Richard Hasper, Tom Silva, Decl.

Gerald Cederholm, and Delores (Dee)

Foxtestifying on behalf of Flores

were Flores and his union Steward,

David Escobedo.

App. 56

48. After a full day's testi

mony, which included evidence = Ramos

of Flores' letter to Brenda-_ pecl.

Giamanco regarding his suspi-

cion of drug distribution, Ar

bitrator Cohn issued a written

decision concluding that FMC

had discharged Flores for just

cause,

49, Plaintiff's lawsuit was

b °

filed on December 30, 1993 Complaint on

file in this

DATED: November 8, 1994. action

(typed)

GIBSON, DUNN & CRUTCHER

CHRISTOPHER J MARTIN

SUSAN B. BURR

/s? By Susan B. Burr

(typed) SUSAN B. BURR

App 57

SUPERIOR COURT OF THE STATE OF

CALIFORNIA COUNTY OF ST . CLARA

Moctezuma Flores

Ve plaintiff

FOOD MACHINERY CORP. # CV 737313

Jerry Cederholm, --

Carlos Ramos, Guada

lupe Lechuga and DOES

1-30 inclusive.

Gefendants

NOTICE OF MOTION AND MOTION TO QUASH

SERVICE OF SUMMONS AND FOR RELIEF _

FROM AND TO SET ASIDE DEFAULT.

(Filed Feb. 8 1995)

TO PLAINTIFF MOCTEZUMA FLORES ACTING IN

PROPRIA PERSONA:

PLEASE TAKE NOTICE that on February 23

1995, at 9:00 a.m., or as soon thereafter -

as the matter may be heard, in Department 17

of the Santa Clara County Superior Court, -

located at 191 North First Street, San Jose

California, defendants Carlos Ramos, Gerald

Cederholm and Guadalupe Lechuga (defendants")

specially appearing, will move this Court --

———————————————

APP 58

for an order quashing service of summons as

to each of said defendants, and granting --

relief from and setting aside the default --

enterec against each of these individual --

defendants on or about December 21, 1994. --

This motion will be made pursuant to Califor

nia Civil Procedure Code §§418.10 and 437 on

the grounds that the defaults entered against

these defendants are void, or, in the alter-

native, that defendants are entitled to re-

lief from such defaults on the grounds that

they were entered through mistake, inadver

tence, or neglect as set forth in the accom

panying papers filed herewith.

This motion is based on the Notice of-

Motion and Motion, the Memorandum of Points

and Authorities in Support of the Motion, --

the Declarations of Susan B. Burr and Joseph

J. Ford, the Request to Take Judicial Notice

of certain papers on file herein, upon other

pleadings and papers on file herein, and upon

such other and further written and oral argu

mets as shall be presented at or before the -

time of the hearing. —

DATED: FEBRUARY , 1995.

/s/ Susan B. Burr.

(typed) Susan B. Burr

Attorneys for defendant

App. 59

IN THE SUPERIOR COURT OF STS. CLARA

FOR THE NORTHERN DIST. OF CALIFORNIA

Moctezuma Flores

plaintiff

FMC Corp. Jerry

Ciderholm, Carlos

Ramos, Guadalupe

Lechuga and DOES

1-30 INCLUSIVE

defendants.

RESPONSE TO DEFENDANT"s UNDISPUTABLE

MATTERIAL OF FACTS,

SEALES: (Filed Feb. 9 1995).

UNDISPUTED FACTS PLAINTIFF's

RESPONSE

V« In July 1982, after

he had been employed at

FMC for only 10 months, Incorrect

Flores was suspended for Statement

two weekd for insubordi

nation, the third major-

incident Flores had been

involved in during the -

brief period of his employ

ment.

r In May 1991, plaintiff

was involved in an alterca [Incorrect

tion with another employe , statement

over a forklift, resulting

al s.«

in a written warning fox -

Flores and a suspension for

App 60

the other employee for

violation of a safety-

rule.

Je In a disciplinary

meeting after receiving Incorrect

the written warning, Flo statemtn-

res threatened Ramos Say

ing I am going to get you

ana threatened to Rick &

punch another employee

4. Flores was sent home-

foltowing the incident of- ,

threatening to kick and to incorrect

statement

punch an employee, and when

he returned to work on May

28, 1991, Flores was given

a three day suspension with

out pay because of the threat.

rr On May 8 1992, Gerald

Cederholm, General Supervisor

met with plaintiff, his union

shop steward, supervisors Tom

Silva, David Lee and Dee Fox-

and Senior CAD Plater Pete DE

Lara concerning an incident

that had occurred the previous

day on plaintiff's shift.

Incorrect

Statement

6. According to those present

at the meeting, Silva and Lee

were called to investigate a-- Incorrect

problem plaintiff was having --statement

with loud popping on the auto

matic CAD plate line, and Delara

stated that the popping was —

caused by Flores having loaded-

the parts incorrectly. ;

(e A shouting mat¢ 4had --

erupted when Lee, plaintif* --

supervisor, told him ¢t@' make _ Incorrect

statement

App 61

sure he loaded the parts

the way Delara had instruc’ Incorrect

ted and plaintiff, who was Statement

subordinate to Delara, --

disagreed with Delara and

became very upset.

8. Plaintiff insisted that

there was something in the - fncorrect

tank that was causing the -- statement

popping reaction, but when -

his supervisors checked, they

had found nothing in the tank

rather, aS Delara had stated,

plaintiff had loaded the parts

improperly.

9. After the information was

recounted in the meeting with-

Cederholm, Flores angrily decla

red that he would not take any-

direction from Delara and walked

out of the meeting.

Incorrect

statement

10. On May 8, 1992, Flores --

caused a chemical spill to occur Incorrect

from a tank holding caustic che’ statement

micals in his work area, by tur

ning on a water valve to the tank

and inexplicably leaving the tank

unattended, resulting in an over-

flow of Approx. 3000 gallons of -

acid solution.

?. FMC's emergency team was -

called to contain and clean up the jfncorrect

spill, for an estimated 50 to 60 statement

man hours of clean up at a cost -

of over $3,000.

12. FMC had to file a report with

the Hazardous Material Division of Incorrect

the San Jose Fire Department -- statement

App 62

describing the spill and

the clean up measures taken.

I2e FMC rules require

that only employees who) jyocorrect

have had training in com) .tatement

pliance are allowed to --

hancle the valves on the-

chemical tanks.

14. Flores admitted that

he had never had any trai-- qncorrect

ning in compliance. statement

15. Flores adamantly re--

fused to accept any respon Incorrect

sability for the chemical statement

spill.

16. Flores was issued a tneorrect

final warning on May 20, 1992

for causing the chemical - statement

spill on May 8.

17% On June 1, 1992, less

than a month after the firs Incorrect

chemical spill and only 10- statement

days after having been expli

city told not to touch the-

valve on the chemical tank,

Flores again turned on the -

water valve on a tank contai

ning chemical solution left

it unattended, and caused a

second chemical spill of 1,600

gallons of acid.

18. Flores failed to report

the second spill, and 50 to 70 Incorrect

man hours were required to -- statement

pump out and clean up the spill.

19. Inmediately after the spill

Geral Cederholm, the General

supervisor for Flores‘ dept. Incorrect

asked Ramos to investigate - statement

the spill as he was very con

cerned about the extend of-

the spill and felt discipinary

action was called for.

20. Ramos met with Flores &

David Escobedo, Flores' union

steward, during the week of

June 10.

Incorrect

statement

aus During the mecting Flores

stated that he could not find

the compliance person, and had imcorrect

made no attémpt to contact DaviaStatement

Lee, his supervisor, Tom Sitva-

another supervisor, or Pete De-

Sara, lead person.

22. After Ftores finished des

cribing the circumstances of - Incorrect

the spill from his perspective, statement

he was suspended pending comple

tion of the investigation.

ra During the week of June -

10 1992, Ramos learned of a -- Incorrect

letter Flores had written to - statement

Brenda Giamanco, regarding Flores

suspicions of drug distribuition

in his work area.

24. Although the letter latked

any concrete basis for Flores --

suspicions, the decision was made - rncorrect

to investigate the allegations - statement

of drug distribution prior to --

meeting with Flores regarding the

spill so that the issue could be

resolved separately from any disci

App. 64

plinary action ultimately -

taken in connection with the

chemical spill incident.

25. Ramos Conducted a throough

investigation of Flores' alle [Incorrect

gations of drug distribuition statement

and spoke with each of the --

employees mentioned in Flores'

letter.

26. After investigation, Ra-

mos conciuded that there was - Incorrect

no basis in‘fact for plaintiff's statement

suspicions of drug use in his--

work area.

27. Flores admitted at the arbi

tration heaing of his discharge

grievance that he had no eviden

ce that any drug use or drug --

dealing took place, and that he-

based his letter on nothing more

than suspicious.

28. There was no further action

taken with respect to Flores' le

tter nor did it in any way enter-

into the decision regarding Flo-

res disciplinary action for caus

ing the chemical spill.

29. FMC does not retaliate agai

nst employees who bring complaints

of drug distribution to the atten

tion of their superiors, and in -

fact affirmatively encourages such

conduct and maintains an "“ethic--

hotline" for employees to use in--

voicing their concern,

30. On July 15, 1992, a discipli

nary action meeting was held to ae

Incorrect

statement

Incorrect

statement

Incorrect

statement

Incorr.

Statmt.

App 65

review the results of the ins

tigation regarding the June 1- Incorrect

spill and to implement appropri statement

ate disciplinary action.

a ¥% In the July 15 meeting, -

the Co. discussed its findings- Incorrect

regarding the chemical spill -- gtatement

that Flores had deliberately --

turned on the water valve on --

when he knew he was not supposed

to touch the valves on the tank

and then left the work area long

enough to allow 1,600 gallons of

toxic chemical solution to spill

from the tank, as well as its --

findings that, prior to turning-

the water valve, Flores had had-

the opportunity but failed to --

contact several people for assis

tance.

32. In the July 15 disciplina-

ry action meeting, Flores admitt>* Incorrect

ed that he never had any inten-- statement

tion of contacting his supervi-

sor David Lee, and stated “the -

guy never did me much good... I

didn's think of him and evén if

I had, I wouldn's have called him.

LEM Based on the results of -

the investigation, together with

Flores' overall record, the Co.-

decided that immediate discharge

for willful violation of Company

safety rules and of a direct order

was the appropriate disciplinary

Incorrect

statement

action.

34. Ramos notified Flores by le*

tter dated July 15, 1992 of the-- Incorrect

Company's decision to terminate hiS statement

employment and the reason for that

action.

App.6;

aD FMC followed its employee

conuuct rules consistently in -

determining the appropriate disci Incorrect

pline to impose for Flors conduct statement

36. Flores filed a grivance -

Concerning the distharge decision

in accordance with the grivance - Incorr.

procedures set forth in the collec Statemt.

tive barganining agreement (the-

"CBA") in effect between the Union

and FMC,

37. A meeting wae welu on July -

21, 1992 to discuss the final warn t

ings issued to Flores after the ~ incorrec

first spill id his termination agstatement

result of tne second spill.

38, In the July 21 meeting, Flo

res admitted that he knew turning Incorrect

the air and water valves on the -

; statement

tank was not part of his job.

39. In the July 21, 1992, grivan

ce meeting Flores made the new -- Incorrect

Claim with respect to the May 8 - statement

Spill that the firs Shift, not he,

had caused the spill,

40. The Company investigated and

confirmed that Flores' charge was-

insupportable, since, the logs that apa

record conditions in the containment ,

areas at the end of every shift -

Showed that the Spill coul@ not --

have been caused by the first shift,

Since the containment area was empty.

41. Also in the July 21 grievance

meeting Flores claimed for the first

time regarding the June 1 sptll that Incorr,.

David Lee and Dee Fox , the shift su Stamt.

pervisor had ordered him to put water

in the tanks.

a ea ee

APP. 67

42. Lee and Fox both denied

ever ordening Flores to put - Incorrect

water in any tank, and Lee sta statement

ted that he had in fact speci-

fically told Flores after the-

first spill never to touch the

valves.

43. In the July 21 grivance-

meeting, Flores' union business

representative asked him why - Incorrect

he did not wait for the complianStatemet

ce person to return instead of

turning the water valve himself,

and Flores had no answer.

44. The July 21 grievance meet

ing ended with an angry outburst Incorrect

by Flores, who ::ounded on the -- statement

table, and made an offensive .-

remark to Ramos,

45. The Co. denied Flo.:es' --

grievance, and the Union requested

that Flores grievance be submmited Incorrt.

to arbitration under the terms statmt.

of the CBA,

46. The arbitration hearing con-

cerning plaintiff's grievance --

took place on February 2 1993, be Speculative

fore American Arbitration Assoc,

Arbitrator Alexander Cohn,

47. Testifying at the arbitra--

tion on behalf of FMC were Carlos

Ramos, Richard Hasper, Tom Silva, Specula

Gerald Cederholm, and Delores (Dee) tive

Foxtestifying on behalf of Flores

were Flores and his union Steward,

David Escobedo.

APP. 68

48. After a full day's testi

mony, which included evidence

of Flores' letter to Brenda- Speculative

Giamanco regarding his suspi-

cion of drug distribution, Ar

bitrator Cohn issued a written

decision concluding that FMC

had discharged Flores for just

cause.

49, Plaintiff's lawsuit was

filed on December 30, 1993. run

DATED:

it = =Swieer £. Kure

App 69

IN THE SUPERIOR COURT OF THE STATE

FOR THE NORTHERN DISTRICT OF CALIF.

Moctezuma Flores

Vv.

FMC. Corp.

ADDITIONAL SEPARATE STATEMENT OF MATE

RIAL FACTS NOT IN DISPUTE,

(sealed) Filed: Feb. 9 1995,

Pursuant to Code of Civil Proc. ----

§437c, plaintiff, Moctezuma Flores submmits

the following "Undisputable matterial of -

facts.

UNDISPUTABLE FACTS EVIDENCE

1. Defendant's Counsel

do not wholiy disposes- FMC‘s answer to

of the within action -- to plaintiff com

[Code of Civ. Proc. -- plaint includes

§437c(f£)(1) but one out of 4

defendants.

7. During a forlift

dispute, Carlos Ramos

wanted plaintiff to -

commit perjury and sign

perjurious documents as

condition for employment

ean

Plaintiff de

Cclaration on

q7.

App 70

8. Eyewitness of the dis

pute confirmed to Ramos no plaintiff's De

body touched D. Ruano, claration at

(exhibit a).

a7. Right after termina

tion FMC charged plaintiff

of misconduct to the Unem-

ployment Insurance Board.

This Institution trashed -

FMC evidence of misconduct

and decided on plaintiff's

favor.

28. Prior to plaintiff's

job dismissal, FMC cad-plate

area produced around three

dozens of "caustic spills"

reported to FMC by plaintiff.

(No action or trascendental

effect on the employee(s)

responsible (es).

29. Defendant do not --

rebuttle all the isuuves

raised on plaintiff's

complaint.

30. Defendant failed to

make their "General --

Appearance.

DATED: February 6 1995.

/s/ Moctezuma Flores

(typed) Moctezuma Flores

App 71.

CITATION OF LAW

CODE OF CIVIL PROC. SECTION 2023, (allowa

NCE OF Discovery), and the 1987 ammendment,

(a) Misuses of the discovery process --

include but are not limited to the follow:

FAILING TO RESPOND OR TO SUBMIT TO _

AN AUTHORIZED METHOD OF DISCOVERY.

MAKING WITHOUT SUBSTANTIAL JUSTIFICA

tion an UNMERITOROUS OBJECT TO THE

DISCOVERY.

MAKING AN EVASIVE RESPONSE TO DISCO-

VERY.

DISOBEYING A COURT ORDER TO PROVIDE-

DISCOVERY.

MAKING OR OPPOSING, UNSUCCESSFULLY &

WITHOUT SUBSTANTIAL JUSTIFICATION A

MOTION TO COMPEL OR TO LIMIT DISCOVERY.

Unless notice of this motion is given ~-

within 45 days of the service of the respon

se, or on before any specific date to which

the propounding party and the responding --

have agreed in writting, the propounding --

party waves any right to compel a further -

response to the interrogatories.

App 72

CITATION OF LAW

Arbitrator Service of Award.

(Code of Civil Proc. §1283.6)

The neutral arbitrator shall serve a --

signed copy of the award on each party to --

the arbitration personally or by registered-

or certified mail or as provided on the agree

ment.

CITATION OF LAW.

DEFENDANTS REPONSABILITIES TO APPEAR

AFTER FILE OF COMPLAINT.

Code 6f Civil Proc. §1014.

APPEARANCE

A defendant appears in an action when he --

answeres, demurs, files a notice of motion-

to transfer pursuant to Section 396b, gives

the plaintiff "written notice of his appea-

rance, or when an attorney gives notice of

appearance for him. After appearance, a de-

fendant or his attorney is entitled to no-

tice of all subsequent proceedings of which

notice is required to be given. Where a -

defendant has not appeared, service of pa--

pers need not be made upon him.

App 73.

CITATION OF LAW.

(Qualification of an expert eitness)

Code of Civil Procedures §720.

(a) A person is qualified to testify as an

expert if he has special knowledge, skill,-

experience, training, or education suffici

ent to qualify him as an expert on the ---

subject to which his testimony relies. ---

Against the objection of a party, such spe-

cial knowledge, skill, experience, training,

or education must be shown before the wit--

ness may testify as an expert.

(b) A witness special knowledge, skill, --

experience, training or education may be--

shown by any otherwise admissible evidence,

including his own testimony.

CITATION OF LAW

DEFENDANT COUNSEL HAD TO DISPOSE OF THE

ENTIRE ACTION BEFORE PLEADING(s) for--

SUMMARY JUDGMET.

Code of Civil Proc. §437c (f£)(1).

A motion for summary adjudication ---

shall be granted only if it completely dis-

poses of a cause of action, an affirmative-

defense , a claim for damages, or an issue -

of duty.

App 74.

CITATION OF LAW

QUALIFICATION OF AN EXPERT WITNESS

Code of Civil Proc. §720

(a) A person is qualified to testify as

an expert if he has special knowledge, skill

experience, training, or education sufficient

to qualify him as an expert on the subject-

to which his testimony relates. Against the-

objection of a party, such special knowledge

skill, experience, training, or education --

must be shown before the witness may testi

fy as an expert.

(b) A witness special knowledge, skill,

experience, training or education may be --

shown by any otherwise admissible evidence,

including his own testimony.

CITATION OF LAW

SAFE AND HEALTHFUL EMPLOYMENT AND PLACE

OF EMPLOYMENT.

Labor Law §6400

Every employer shall furnish employment-

and a place of employment which are safe &-

healthful for the employees therein.

‘aa

App 75

CITATION OF LAW

RELIEF FROM JUDGMENT WHERE SUMMONS

DOES NOT RESULT IN ACTUAL NOTICE

Code of Civil Proc. §473.5

(a) When service of a summons has not re--

sulted in actual notice to a party in time-

to defend the action and a default or default

judgment has been entered against him or her

in the action, he or she may serve and file-

a notice of motion to set aside the default

or default judgment and for leave ts defend

the action. The notice of motion shall be--

served and filed within a reasonable time, -

but in no event exceeding the earlier of:

(i) two years after entry of a default judg

ment against him or her; or;

(ii) 180 days after service on him or her of

a written notice that the default or default

judgment has been entered.

(b) A notice of motion to set aside a de---

fault judgment or a default and for leave to

defend the action shall designate as the --

time for making the motion a date prescribed-

by subdivision (b) of Section 1005, and it--

shall be accompanied by an affidavit showing-

under oath that the party's lack of actual--

notice in time to defend the action was not

App 76

caused by his or her avoidance of service or

inexcusable neglect. The party shall serve

and file with the notice a copy 6f the answer

motion, or other pleading proposed to be --

filed in the action,

motion was made within the period permitted-

by subdivision (a) and that his or her lack-

of actual notice in time to defend the action

was not caused by his or her avoidance of --

service or inexcusable neglect, it may set --

aside the default or default judgment on what

ever terms as may be just and allow the party

to defend the action.

CITATION OF LAW

RESPONSABILITY FOR WILLFUL ACTS OR

NEGLICENCE

Code of Civil Proc. §1714

Every one is responsible, not only for-

the result of his willful acts, but also for

an injury occasioned to another by his want

of ordinary care or skill in the management

of his property or person, except so far as

the latter has, willfully or by want of ordi

nary care, brought the injury upon himself.

The extend of liability in such casés is de-

fined by the Title on Compensatory Relief.

App 77

CITATION OF LAW

RETALIATION FOR REFUSAL TO WORK IN

VIOLATION OF HEALTH AND SAFETY

STANDARDS: ACTION FOR WAGES.

Labor Code § 6311.

No employee shall be laid off or dis---

charged for refusing to perform work in the

performance 6f whith this code, including -

Section 6400, any occupational safety or --

health standard or any safety order of the-

division or standards board will be violated,

where the violation would create a real and

apparent hazard to the employee or his or her

fellow employees. Any employee who is laid -

off or discharged in violation of this sec,

or is otherwise not paid because he or she-

refused to perform work in the performance-

of which this code, any occupational safety-

or health standard or any safety order of --

the division or standards board will be vio

lated and where the violation would create a

real and apparent hazard to the employee or

his or her fellow employees shall have a --

right of action for wages for the time the--

employee is without work as a result of the-

layoff or discharge.

App 78

CITATION OF LAW

COMPLIANCE WITH EMPLOYER"s DIRECTIONS

Labor Code §2856.

An employee shall substantially comply --

with all the directions of his employer con

cerning the service on which he is engaged,

except where such obedience is impossible or

unlawful, or would impose new and unreasona

ble burdens upon the employees.

—_—- —-—_—_——

CITATION OF LAW

CONFORMANCE TO USAGE OF PLACE OF

PERFORMANCE,

Labor Code §2857

An employee shall perform his service in

conformity to the usage of the place of per

formance, unless otherwise directed by his-

employer, or unless it is impracticable or-

manifestly injurious to his employer to do

SO.

CITATION OF LAW

INVESTIGATION OF INDUSTRIAL ACCIDENTS, SE

RIOUS EXPOSURES, OR OCCUPATIONAL ILLNESSES

CORRECTIVE ORDERS.

Labor Code § 6313.

(a) The divisijon shall investigate the -

causes of any employment accident which is -

fatal to one or more employees or which re--

sults in a serious injury or illness, or a -

serious exposure, unless the division deter-

mines an*investigation is unneccessary, in-

which case the division shall summarize the

fact indicating that the accident need not-

be investigated and the means by which the--

facts were determined. The division shall -

establish guidelines for Getermining the --

circumstances under which an investigation -

of these accidents and exposures is unnece-

ssary.

(b) The division may investigate the --

causes of any other industrial accident or-

occupational illness which occurs within the

state in any employment or place of employ

ment, or which directly or indirectly arises

from or is connected with the maintenance or

operation of the employment or place of empl

Oyment, »and shall issue any orders necessary

to eliminate the causes and to prevent reoccu

rrence,

APP 80

CITATION OF LAW

PERJURY AND SUBORNATION OF PERJURY

Penal Code §118

PERJURY DEFINED

Every person who, having taken an oath---

that he will testify, declare, depose, or --

certify truly before any competent tribunal

officer, or person, in any of the cases in--

which such an oath may by law of the State

of California be administered, willfully &-

contrary to such oath, states as true any -

material matter which he knows to be false

and every person who testifies, declares, -

deposes, or certifies under penalty of per

jury in any of the cases in which’ such --

testimony, declarations, depositions, or --

certification is permitted by law of the --

State of California under penalty of perju

ry and wilfully states as true any material

matter which he knows to be false, is guilty

of perjury.

This section is applicable whether the --

statement, or the testimony, declaration, --

deposition, or certification is made or subs

cribed within or without the State of Cali--

fornia.

App 81

QUESTIONARY TO CARLOS RAMOS DURING

ARBITRATION.

Q. Mr. Ramos: did you received complaint -

of drugs distribution at Mr. Flores' place?

A. Yes, My boss Brenda Giammanco gave me a

letter sent to her by Moctezuma Flores com

plaining of drugs distribution on his area.

She gave me the letter for investigation,

Q. Did you investigate Mr. Flores allega--

tions?

A. No; we had a meeting and determined --

Moctezuma Flores allegations were not true.

Q. W&, who are we?

A. My partner Lupe Lechuga; Supervisor -

Gerald Cederholm an myself, we all concluded

that his complaint was not true. None of us

had seen anything or hear anything,

Q. Did you talk to Mr. Flores about your-

decision?

A. No; it was not necessary; now, I do not

want to talk anymore about Flores complaint

of drugs distribuition.

App 82

LETTER SENT TO DEFENDANTS FOR PRODUCTION

OF DOCUMENTS ON FEBRUARY 9th 1994,

TO FMC CORP. AND ITS ATTORNEYS ON RECORD.

Pursuant to Code of Civil Procedures ---

§2031, Mr. Motezuma Flores demands that you

produce for inspection and copying at either

FMC premesis or Union Hall, the following --

specific items which are now in your posse -

Ssion, custody or control.

A written response hereto is required of

Said Defendant within 20 days after service

of this demand, consisting of either a state

ment that FMC will comply with this demand,

or a statement that FMC lacks the ability to

comply with this demand, or an objection to

all or part of this demand,

DATED: February 9th 1994,

/s/__Moctezuma Flores

(TYPED) Moctezuma Flores.

p/s

Plaintiff is willing to cover all the--

expenses created on this request. “For example:.

Removal of the file, custody of the same, -

Copy machine expenses etc..

_COI_IOEEEEEEEE————

App 83 ,

CITATION OF LAW

Leaving and mailing copies of summons;

(COMPLETION OF SERVICE)

Code of Civil Proc. §415.20

(a) In lieu of personal delivery of a copy -

of the summons and of the complaint to the-

person to be served as specified in Section

416.10, 416.20, 416.30, 416.40 or 416.50, a-

summons may be served by leaving a copy of

the summons and of the complaint during --

usual office hours in his or her office --

with the ,person who is apparently in charge

thereof, and by thereafter mailing a copy-

of the summons and of the complaint (by first

-class mail, postage prepaid to the person-

to be served at the place where a copy of the

Summons and of the complaint were left. Ser

vice of s summons in this manner is deemed

complete on the 10th day after such mailing.

CITATION OF LAW

UNLAWFUL TERMS AND CONDITIONS

Code of Civil Procedures § 432.5

No employer, or agent, manager, superinten

dent, or officer thereof, shall require any

employee or applicant for employment to --

agree, in writing, to any term or condition -

which is known by such personal thereof to-

be prohibited by law.

App

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APP. §5

PLAINTIFF MOVED THE COURT AFTER

CIDERHOLM's REFUSAL TO PRODUCE

RELEVANT INFORMATION AND DOCUMENTS.

Moctezuma Flores

plaintiff

- # C, 94-20073 EAI.

FMC. Corp.

defendants

(SEALED)

Filed: (May 18 1994)

PLAINTIFF"s WRITTEN INTERROGATORIES

TO DEFENDANT.

TO DEFENDANT FMC AND ITS ATTORNEYS OF

RECORD.

You are hereby requested to answer, --

fully in writing and under oath by a duly -

authorized representative the following ---

written interrogatories within thirty days-

of the services hereto, pursuant to Code of

Civil Procedure Section 2030. In answering-

these interrogatories you are requested to

provide all information which is available-

to you, your agents, representatives emplo-

yees attorneys, and investigators and not-

just such information as in your personal-

APp 86

possession or knowledge.

If objections are inerposed to any inte

rrrogatories, the complete basis of same -

shall be stated. It is contended that any-

information sought hereby and previously in

"Demand for Production of Documents" are--

privileged by plaintiff-defendant privilege

and hopefully we can work-out this interro-

gatory before conference scheduled for Juhe

20, 1994 and that this interrogatory not be

denied in conclusionary terms as in “Request

for Production of Documents",

DATED: May 17, 1994.

/s/ Moctezuma Flores

(TYPED) Moctezuma Flores.

App 87

CITATION OF A CASE

Petermann v. Inernational brotherhood

((174 C. A. 2d 184; 344 P. 2d. 25)

His status as a member of a Union, the

plaintiff should first exhaust his internal

remedies before resorting to the courts and-

that he has failed to do this.

CITATION OF A CASE

Alvin Daniels vs. FESCO DIVISION

(733 Federal Reporter2nd series page 622.)

Plaintiff was terminated October 24,

1980, and filed his complaint on November--

29, 1982 (wronful termination).

An action filed more than two years after--

the employee received notification of termina

tion was barred by California's two year --

statute of limitations.

APP 88

CITAION OF A_ CASE

Wilson v. Blue Cross of south california

(222 Calif. App. 2nd,660; 2712Ca. Rep.

876. (July 1990)

In a defendants' separate statement of--

undisputable facts, Code of Civil Proc. Sec.

437c, Subd. (b) requires that all the facts

that are undisputed be set forth in the mo--

ving parties separate statement.

CITATION OF A CASE

H uynh v. Ingersoll-Rand.

(16 Cal. App 4th 825; 20 Cal. Reptr. 2d-

296 [june 1993]

"Misuse" is a defense only when that mis

use is the actual cause of plaintiff's injury

not when some other defects produces the --

harm. Causation is one of the elements of -

the “misuse" affirmative defense and thus --

the burden falls on the defendant to prove -

it. At the summary judgment stage, it is not

the responsability of the responding party -

to produce evidence other factors may have -

caused the injury. Instead, it is part of --

the moving party's obligation to complete its

proof of the affirmative defense of "misuse"

App 89

As indicated earlier, FMC does not or--

at any time tries to convince the Court of

the allegued "misconduct" for which plaintiff

was fired.

The fatct FMC "jumped" from receiving -

complaint to "request for summary Judgment"

without having filed an answer, the obvious

question arises of how is the findings of --

the Court to decide on favor of thoe defen

dants.

Additionally, "undisputed Matterial --

Facts" submmited by defense, in clear con--

flict with the case of Wilson v. Blue Cross

(App 88) which requires defendant to pre--

sent an affirmative defense on the undisputa

ble Matterial Facts to all and each defen--

dant and where the defense‘'s counsel not --

even mention and or includes the name of the

defendants on those documents.(App. 47-56).

Aditionally: In order to qualify for --

summary judgment, the defense has to dispose

of the entire action. As required Code of -

Civil Procedures §437c (f) (1).

The defense's Counsel submmits documenta

tion on behaif of FMC only, leaving the rest

of the defendants unprotected of the charges

made against them,

App. 90

Moreover, plaintiff still ignores of how

Court ignores and or allows practices of --

FMC's personnél like:

Cederholms invitation to plaintiff to -

be part of drugs distribution as condi

tion for employment. (App. 74; 76; 77;

& 78).

Ramos invitation to sign perjurious do-

cuments so penalty of suspension and up

to termination. (App. 83 bottom).

Assignment to plaintiff to work in dan-

gerous areas or penalty to suspen or

terminate employment.

Refusal of Defendant Cederholms to in

dicate plaintiff's allegued "wrong--

doings". (App. 79)

Cederholm adamantly attitude in his

decision that prevension of accident

reocurrence was by given plaintiff -

a “final warnning". (App. 29).

False testimony of Carlos Ramos to the

Court that he performed an investiga

tion of drugs distribuition as when -

he previously had stated he never did

Conducted anything on basis he did not

believe plaintiff. (App 81).

—

App 91

False testimony of defendant Ceder--

holms he called the ERT team when in

reality nobody saw anything or any -

spill. (App. 45 & 46).

The Court of Appeals fails to discuss on

its opinion the role that played the be--

havior stated above; and how after those -

references, the Court finds plaintiff guilty

of misconduct.

This issue has been already discussed-

and decided by a State Judge. (misconduct).

(App. 27 & 28).

The Judgment is reversed, and the case

is remanded to Court of Appeals for further

procedures.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.