Filed 1/27/16 Ubarieke v. Wal-Mart Stores CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PATERSON UBARIEKE, D063555
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00096254-
CU-OE-CTL)
WAL-MART STORES, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B.
Barton, Judge. Affirmed.
Paterson Ubarieke, in pro. per., for Plaintiff and Appellant.
Petit Kohn Ingrassia & Lutz, Jennifer N. Lutz and Jenna H. Leyton-Jones for
Defendants and Respondents.
This employment discrimination case was tried without a jury, and, at the close of
plaintiff and appellant Paterson Ubarieke's case, the trial court granted defendants and
respondents Wal-Mart Stores, Inc. et al.'s (Walmart) motion for judgment under Code of
Civil Procedure section 631.8. In granting the motion, the trial court stated that the case
turned largely on matters of credibility and that Ubarieke, who was acting in propria
persona, had not produced credible evidence in support of his claims. On appeal, we
reject Ubarieke's contentions that: defense counsel engaged in fraud; there was any
irregularity in the proceedings, error in law, accident or surprise that warrant vacation of
the judgment; or the judgment is unsupported by or otherwise against the law.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ubarieke was employed by Walmart from October 2005 until November 2010,
when he resigned from his position as a retail associate at Walmart's Poway store.
In November 2006, Ubarieke was transferred from one department of the store to
another after a number of female associates reported Ubarieke behaved inappropriately
around them and an actual altercation between Ubarieke and a female associate occurred.
The female associate stated Ubarieke acted disrespectfully towards her.
In June 2008, a Walmart assistant manager, Michael Macumber, gave Ubarieke a
"coaching" session, the initial level of discipline Walmart uses with its employees. At
Walmart, verbal coaching is followed by written coaching, "decision-making day," and
termination.
The June 2008 coaching session addressed an incident in which Ubarieke ignored
a directive from Macumber and argued with Macumber and other management personnel
in the presence of customers. In March 2009, Ubarieke received another coaching for
insubordination when he ignored directives from his supervisors.
On June 12, 2009, Ubarieke received a third coaching because he both ignored a
directive and threatened a supervisor with legal action. Because the third coaching was
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a "Decision Day" coaching, consistent with Walmart policy, Ubarieke was provided
one day off of work with pay to determine whether he would change his behavior and
write a plan of action explaining how he intended to improve his behavior. Ubarieke,
however, refused to write a plan of action. Instead, on June 19, 2009, Ubarieke, acting
in propria persona, filed his first employment discrimination action (First Lawsuit)
against Walmart and a number of Walmart supervisors, including Macumber.
In the First Lawsuit, Ubarieke alleged inter alia that he had been discriminated
against and harassed on the basis of his race, color, national origin and gender, and that
he had been retaliated against for complaining about allegedly illegal conduct.
Ubarieke further alleged Walmart had breached a contract it allegedly had with him. 1
On June 25, 2009, Walmart's management personnel met with Ubarieke to
discuss his refusal to write a plan of action in connection with his Decision Day
coaching. During this meeting, Ubarieke continued to exhibit defiant conduct and
was ultimately permitted to return to his department notwithstanding his refusal to
write a plan of action.
On or about July 4, 2009, Walmart received a complaint from a customer after
Ubarieke refused to assist her. When managers spoke with Ubarieke about this incident,
he denied a customer had ever approached him.
On or about September 8, 2009, Ubarieke received a performance evaluation,
which noted that he needed to be "willing to help out when asked." In May 2010,
1 On October 22, 2010, the trial court granted defendants' motion for summary
judgment in the First Lawsuit, and thereafter entered judgment against Ubarieke. We
affirmed that judgment. (Ubarieke v. Walmart Stores (Feb. 29, 2012, D058556) [nonpub.
opn.].).)
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Ubarieke commenced a medical leave of absence. On July 16, 2010, while the First
Lawsuit was pending, Ubarieke filed the instant lawsuit in which he again alleged claims
of employment discrimination. Ubarieke named Walmart and a number of its employees
as defendants. As we indicated, Ubarieke resigned in November 2010.
Prior to trial, the trial court granted in part defendants' motion for summary
judgment and summary adjudication. As we noted at the outset, trial of Ubarieke's
remaining claims was by the court, and, at the close of Ubarieke's case, Walmart and the
remaining individual defendant moved for judgment under Code of Civil Procedure
section 631.8. In granting the motion, the court stated: "In the court's view, this case
comes down largely to a credibility determination. The court has carefully assessed the
credibility of the witnesses and considered their attitude and demeanor while testifying.
As a general matter, there was little or no corroborating evidence concerning the
allegedly racially discriminatory statements or motivations for the actions of Wal-Mart's
personnel." With respect to Ubarieke's principal claim that his coaching sessions and
discipline were racially motivated, the trial court stated: "The court is also persuaded by
the fact that two of the managers who were involved in both asking Plaintiff to
perform work and providing him coachings in connection with his refusal to do so
were African American. Both Venson Pugh and Cheneque Moots testified that
Plaintiff's race and national origin played no role in the coachings he was provided.
[¶] Moreover, Moses Nwosu, a Nigerian associate like Plaintiff, testified that he never
saw evidence of discrimination against Nigerians at Wal-Mart. [¶] Plaintiff also failed to
present any credible evidence establishing that similarly situated 'white' associates
received better pay than he, or that he was denied a promotion to management on account
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of any protected characteristic."
After the trial court granted Walmart's motion for judgment, Ubarieke moved for a
new trial, which the trial court denied.2 Thereafter, Ubarieke moved for relief from the
judgment, which motion was also denied.
DISCUSSION
I
In related arguments, Ubarieke contends Walmart's counsel unfairly and
improperly interfered with his ability to compel testimony from Walmart employees and
introduced into evidence a misleading videotape of deposition testimony. He also
contends the trial court abused its discretion in failing to compel the attendance of a
former Walmart employee and in permitting one of its employees, who was also a
witness, to stay in the courtroom during the trial. Ubarieke's motion for new trial was
based on what he believed was counsel's impropriety and the trial court's supposed errors.
We find no impropriety on counsel's part or any error or abuse of discretion by the trial
court and hence no error in the order denying Ubarieke's motion for a new trial.
A. Procedural Background
1. Witnesses
On the first day of trial, the trial court considered Walmart's motion to exclude
testimony from witnesses not disclosed during discovery. The trial court granted
Walmart's motion in part and denied it in part. The trial court determined that Ubarieke
could call current Walmart employees as witnesses and that Walmart would produce
2 We grant Ubarieke's August 31, 2015 motion to augment the record with exhibits
attached to Walmart's opposition to Ubarieke's motion for a new trial.
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them upon Ubarieke's request. The trial court however excluded witnesses who were no
longer employed by Walmart and had not been disclosed during discovery.
During the course of the trial, Walmart in fact produced, at Ubarieke's request, 13
employees. Notwithstanding the trial court's order that Walmart produce its employees
as witnesses, and Walmart's compliance with the order, Ubarieke nonetheless had a
number of Walmart employees served with subpoenas. Significantly, the subpoenas
directed the employees to appear on days the trial court had advised the parties that its
courtroom would be dark. Ubarieke contends that some of his subpoenas were not served
because the process server was erroneously advised that some of the individuals were no
longer Walmart employees.
When Walmart's counsel learned the company's employees had been subpoenaed
to appear on days the trial court's courtroom would be dark, she advised the employees
they need not appear and that she would contact them if they needed to appear. She also
wrote to Ubarieke and objected to service of the subpoenas. When trial resumed,
Walmart's counsel brought the subpoena issue to the attention of the trial court and stated
that, in light of the trial court's previous orders, Walmart did not believe the subpoenas
were valid. The trial court then inquired of Ubarieke as to what witnesses he planned to
call, and he identified one of the subpoenaed employees, Moses Nwosu. Walmart's
counsel then agreed to produce Nwosu. At that point, Ubarieke made no objection to
counsel's representation to the court or asserted the need for production of any other
witnesses.
2. Videotape
During Walmart's cross-examination of Ubarieke, Walmart's counsel played for
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the trial court excerpts of Ubarieke's deposition in which Ubarieke answered two
questions about his emotional distress. Ubarieke did not ask that any other portions of
the deposition be played for the trial court.
3. Peppard and Gladue
Ubarieke served Walmart's counsel with a notice requesting that one of Walmart's
former employees, Kimberley Peppard, attend trial. However, prior to trial, the claims
against Peppard had been dismissed on Walmart's motion for summary judgment. At the
time of trial, Peppard was no longer working for Walmart and Walmart's counsel
understood she was living in Nevada. Accordingly, Walmart did not produce Peppard for
trial and the trial court did not compel it do so.
Walmart did designate one of the dismissed defendants, Arthur Gladue, as its
representative under Evidence Code section 777, subdivision (c), and Gladue was
permitted to stay in the courtroom during trial.
B. Analysis
The record discloses no impropriety on the part of Walmart's counsel. Her
statements to the subpoenaed Walmart employees were accurate and practical; no useful
purpose would have been served had they appeared on days in which the trial court's
courtroom was dark. In any event, in light of Walmart's ability and willingness to
produce its employees for trial, Ubarieke suffered no prejudice. Parenthetically, we note
the trial court did not abuse its discretion in excluding witnesses who had not been
disclosed during discovery and were not, at the time of trial, Walmart employees.
We also find no impropriety in counsel's use of the deposition tape; if Ubarieke
believed the excerpts were misleading, he could have asked that more of the deposition
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be played for the trial court.
We find no abuse of discretion in the trial court's unwillingness to call Peppard as
a witness. She was no longer a party to the action and apparently was beyond the
subpoena power of the court. Moreover, Walmart had the express right to designate
Gladue as its representative and have him attend the trial. (Evid. Code, § 777, subd. (c).)
In sum, the trial court did not error in denying Ubarieke's motion for a new trial.3
II
Ubarieke also contends the trial court erred in dismissing his claims. As we have
indicated, the trial court rejected Ubarieke's claims largely on the basis of its
determination of the credibility of the parties' witnesses. Plainly, the trial court found
that Ubarieke was not credible and that Walmart's witnesses were credible. On a motion
for judgment under Code of Civil Procedure section 631.8, such determinations of
credibility are the province of the trial court and, unless they are wholly unreasonable,
binding on appeal. (See Kinney v. Overton (2007) 153 Cal.App.4th 482, 487.) Where, as
here, the plaintiff has the burden of presenting credible evidence in support of his claims
and has failed to do so, the trial court did not err in dismissing those claims.4
3 Ubarieke's motion for relief from the judgment was based on a reiteration of his
contention that Walmart interfered with his ability to subpoena its employees. For the
reasons the trial did not err in denying Ubarieke's motion for a new trial, it did not err in
denying the motion for relief from judgment.
4 Briefly, Ubarieke's discrimination claim fails on appeal not only because he failed
to present evidence that Walmart took an adverse employment action against him before
he went on a medical leave and thereafter resigned, but also because he failed to show
that Walmart acted with any discriminatory motive while he was working for the
company. Ubarieke's harassment claim fails because although he testified that one of his
supervisors called him a racially offensive term, that another supervisor told other
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DISPOSITION
The judgment is affirmed. Walmart to recover its costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
employees to "keep an eye on Ubarieke," that supervisors stated they were looking for a
way to fire him, and that his movements were monitored, he presented no corroborating
evidence and the trial court did not find him credible. Ubarieke's retaliation claim fails
because the coaching he received after he filed the First Lawsuit and later requests for
assistance made by supervisors were not adverse employment actions in that they did not
give rise to any decrease in his pay or demotion; moreover, there was no credible
evidence that during the June 25, 2009 coaching session Ubarieke was subjected to any
inappropriate behavior. Ubarieke's claim that Walmart did not take steps to prevent
discrimination and harassment fails because the company not only had an anti-
discrimination and anti-harassment policy, but also because Ubarieke failed to show that
he was subject to discrimination or harassment. Ubarieke's breach of contract claim fails
because, even if there were a contract under which the company promised not to
discriminate against or harass its employees, there is no credible evidence Ubarieke
suffered such discrimination or harassment. For the same reason, Ubarieke's constructive
discharge claim also fails. Because all of Ubarieke's substantive claims failed, there was
no basis upon which to award any exemplary damages.
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