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Duran v. United States Bank

Duran v. United States Bank

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Published by www.BaileyDaily.com

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Categories:Types, Business/Law
Published by: www.BaileyDaily.com on Feb 07, 2012
Copyright:Attribution Non-commercial


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On October 25, 2007, the trial court issued an order regarding closing briefs that,

in part, prohibited USB from referencing the four former named plaintiffs‘ depositions as

well as the declarations USB had sought to admit.

On November 5, 2007, USB filed a ―due process motion for briefing and
additional argument re phase one evidence,‖ asking the trial court to issue a new ruling

regarding the evidence excluded by the October 25, 2007 order.35

On December 4, 2007, the trial court filed its order rejecting USB‘s due process


At a hearing also held on this date, the court articulated its finding in favor of

plaintiffs on the issue of liability. The court focused primarily on USB‘s expectations as

to whether BBO‘s should spend the majority of their workday outside of the office:
―[T]he Court is compelled to reach the conclusion that the employer, through its

descending hierarchy of managers, did not care where the Class members spent their time

as much as they cared about the goal of getting new business or, for that matter, retaining

old business at the least cost to the bank. [¶] . . . [¶] It is striking to the court that if the

bank‘s expectation was that more than 50 percent of the class members‘ time was to be

spent outside bank property, that there is not clear specific expression of . . . this

expectation in the record.‖

The trial court remained steadfast in its position not to hear proffered BBO‘s from

the defense to challenge plaintiffs‘ version of the facts. As to USB‘s protests regarding

the denial of its due process motion, the court again referred counsel to Bell III.

impaired credibility of certain RWG members who had signed prior inconsistent declarations, or
who had made willful misrepresentations about their employment or education history,
sometimes while under penalty of perjury.


USB asserted the deposition testimony of the four prior named plaintiffs was admissible as
party admissions under Evidence Code section 1220. USB also argued that the deposition
testimony and the 70-plus class member declarations were admissible under Evidence Code
section 1230 as prior statements of unavailable witnesses, and as statements against interest
because the declarations rendered their claims invalid.


In its order denying the motion, the trial court observed: ―Defendant‘s lack of enthusiasm for
the trial management plan is already preserved for appellate review.‖


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