Malate v. Ruiz

Filed 5/4/06 Malate v. Ruiz CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Eleanor Malate (Eleanor) and her husband, Ysmail Malate (Ysmail; collectively, the Malates),^[1] sued Yolanda T. Ruiz (Ruiz) and Y.T.R. Homes ICF/DD-H, Inc. (YTR Homes; collectively, appellants) for overtime compensation for their work at a group home for people with developmental disabilities operated by YTR Homes. Ruiz owns the real property where YTR Homes operates group homes; she and her three daughters are the principals, officers, and directors of YTR Homes.

During discovery, Eleanor produced lengthy diaries detailing her alleged overtime work and at her deposition she claimed to have written these diaries contemporaneously with her employment with appellants. Subsequently, she corrected her deposition testimony to state that she prepared the diaries after she left her employment with appellants. At trial, Eleanor asserted her right under the Fifth Amendment of the United States Constitution in response to questions about her motivations for providing false testimony about when she prepared the diaries. The trial court instructed the jury not to draw any inference from Eleanor's assertion of this privilege and not to let her assertion of this privilege impact her credibility.

At the end of the trial, the jury delivered a unanimous verdict on the Malates' claims that they were owed overtime and awarded Eleanor $107,700 and Ysmail $31,337. The Malates were also awarded statutory penalties; Eleanor received $2,767.20 and Ysmail collected $2,076. The court also ruled in favor of the Malates on their unfair business claim under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and awarded Eleanor an additional $54,176.31 and Ysmail an additional $18,184.40 as restitution.

This appeal followed the judgment. Appellants challenge the trial court's ruling that permitted Eleanor to assert her Fifth Amendment privilege and still be able to proceed with her claims. They also challenge the court's rulings, which permitted Ysmail to assert the marital communication privilege and barred applying the â€