Whitmer v. Farmers Insurance Exchange CA2/2 ( 2021 )

Filed 5/27/21 Whitmer v. Farmers Insurance Exchange CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JASON WHITMER, B305827
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC684610)
FARMERS INSURANCE
EXCHANGE,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Affirmed.
Thompson Law Offices and Robert W. Thompson; Holman
Schiavone and Aiman A. Dvorak for Plaintiff and Appellant.
Tharpe & Howell, Christopher S. Maile, and Eric B. Kunkel
for Defendant and Respondent.
******
An employee of an insurance company sued his employer
for discrimination and retaliation. When the employer moved for
summary judgment, the employee dropped his discrimination
claims but maintained that triable issues of fact on his
retaliation-based claims warranted the denial of summary
judgment. The trial court concluded there were no triable issues,
and dismissed the employee’s retaliation-based claims. This was
correct, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Jason Whitmer (plaintiff) was born in March 1968. He
started working for Farmers Insurance Exchange (Farmers) in
1991.1 Plaintiff worked in its Pocatello, Idaho office.
A. Plaintiff’s professional relationship with
Kamala Wedding (Wedding)
In 2003 or 2004, plaintiff hired Wedding to work with him
at Farmers. In the ensuing years, Wedding was promoted to be
plaintiff’s peer and, by 2014, his supervisor. By 2013, however,
plaintiff believed that he and Wedding had “different
personalities and management styles.”
B. Plaintiff’s layoff amid corporate restructuring
In 2014, plaintiff was employed as one of two division
managers within Farmers’s Special Investigations Unit (the
1 By stipulation of the parties, the Farmers entity
responsible for any misconduct is Farmers Insurance Exchange.
Thus, although plaintiff initially sued Farmers Insurance Group,
Inc. as well, he eventually dismissed that entity.
2
Unit). At that time, the Unit had a director, two division
managers and four zone managers. Wedding became the Unit’s
director in 2015.
In late 2015 and early 2016, Farmers restructured the
Unit. As part of this restructuring, Farmers eliminated the two
division manager positions and added a fifth zone manager
position. Because this left two, higher-level division managers
without jobs, Farmers decided to re-interview all interested
employees for all five zone manager positions.
Wedding and others interviewed plaintiff for one of the
zone manager positions in early February 2016, but did not select
him for the position because Farmers “preferred” the position be
based out of its Southern California office and plaintiff was
unwilling to relocate from Pocatello.
In a March 8, 2016 letter, Farmers informed plaintiff he
had 60 days to line up a different job at Farmers before being
terminated.
C. Plaintiff’s hire for a different position at
Farmers
In late March 2016, plaintiff applied for a position as a
direct repair facility consultant that would allow him to remain
in Pocatello. In late April, he was offered the position.
On Farmers’s pay scale, the consultant position was four
salary grades below the division manager position. This meant a
salary cut from $120,659.14 to $96,900. Plaintiff later explained
that he was aware that the new job “require[d him] to take a”
“four salary grade demotion” and a nearly $30,000 “downgrade in
pay,” but that he “took [it] in an effort to keep [his] employment
with Farmers.”
3
To soften the impact of this reduction in salary, plaintiff in
late April or early May of 2016 approached Angela Smith
(Smith), one of Farmers’s Human Resources Consultants, to ask
if Farmers would be willing to implement a phased reduction in
his salary rather than dropping it all at once. Farmers granted
plaintiff’s request, allowing him to keep his $120,659.14 salary
for one year; at that one-year mark (in May 2017), Farmers
would drop his salary by $10,000; six months later (in November
2017), Farmers would drop his salary by another $10,000; and six
months after that (in May 2018), Farmers would drop his salary
to the highest authorized salary in the salary grade for the
consultant position. This arrangement was “memorialized” in a
“Change in Employment Conditions” form.
Plaintiff formally accepted the consultant position on May
4, 2016. Farmers thereafter reduced plaintiff’s salary according
to schedule.
D. Plaintiff’s internal complaint
On December 28, 2016, plaintiff lodged an internal
complaint with Farmers through a third-party administrator
retained by Farmers to receive such complaints.2
In his internal complaint, plaintiff asserted that he was
“treated unfairly and retaliated against” “in regard to the
reorganization of [the Unit]” because Wedding “created location
requirements for [the zone manager] position she knew [plaintiff]
could not meet” in order to preclude him “from obtaining th[at]
2 Although the operative complaint alleges that plaintiff
initially lodged his internal complaint between “approximately
Christmas 2015 and New Year’s 2016,” those allegations are
inconsistent with the undisputed evidence and, as the trial court
noted, would also render plaintiff’s claims untimely.
4
position.” Plaintiff set forth eight incidents that, in his view,
established Wedding’s animosity toward him—namely, that (1)
Wedding, in December 2013, met with plaintiff to tell him that
his work group was “negatively affect[ing] her [work] group,” (2)
Wedding became “upset” in late 2013 and early 2014 when
plaintiff gave her a “candid peer evaluation” of her work, (3)
Wedding again became “upset” in December 2015 when plaintiff,
at the urging of Wedding’s supervisor, told Wedding that she was
“overreacting to every issue brought to her attention,” (4)
Wedding in December 2015 “threat[ened]” plaintiff that he would
be rated poorly if he did not agree with Wedding’s
recommendation to give one of plaintiff’s subordinates a lower
evaluation rating, (5) Wedding in February 2016 gave plaintiff a
performance rating of “building” (rather than “successful”) on his
prior year’s work, (6) during the call on March 8, 2016, when
Wedding informed plaintiff he would not be hired for a zone
manager position, Wedding told plaintiff it would be “up to the
Zone Managers” whether plaintiff could get another position at
Farmers, (7) Wedding immediately pulled plaintiff off of his
duties as division manager once he was not hired for the zone
manager position, and (8) plaintiff got a call from another
employee in June 2016 warning him not to “speak negative[ly]
about [Wedding].”
At no point in the internal complaint did plaintiff express
or imply that he was discriminated against based on his age.
E. Plaintiff’s voluntary resignation
In October 2018, plaintiff voluntarily left Farmers.
5
II. Procedural Background
A. Pleadings
On November 22, 2017, plaintiff sued Farmers. After the
trial court sustained a demurrer to plaintiff’s original complaint
with leave to amend, plaintiff filed the operative, first amended
complaint alleging claims for (1) discrimination in violation of the
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940
et seq.), (2) retaliation in violation of FEHA, (3) failure to prevent
violations of FEHA, and (4) wrongful termination in violation of
public policy.3
With regard to his retaliation claim, plaintiff alleges that
Farmers retaliated against him for filing his internal complaint
by “demot[ing him] a second time on May 1, 2017” and
“demot[ing] him again” “in December 2017” by reducing his pay.
B. Motion for summary judgment or summary
adjudication
In July 2019, Farmers filed a motion for summary
judgment or summary adjudication.
In response, plaintiff (1) dismissed his claims for
discrimination and wrongful termination in violation of public
policy, and (2) opposed summary judgment on his claims for
retaliation and failure to prevent retaliation. Plaintiff testified in
his deposition in this case that (1) he never had any discussions
about how the consultant position would affect his salary, (2) his
salary in the consultant position was to stay “the same” despite
3 While plaintiff’s operative complaint alleges discrimination
on the basis of race, age, and gender and retaliation for
complaining about age- and gender-based discrimination, the sole
basis plaintiff pursues on appeal is retaliation for his complaint
regarding age-based discrimination.
6
being four salary grades lower, and (3) the first time he learned
there would be any change to his salary was in May 2017 (and
thus after he lodged his internal complaint raising issues of age
discrimination), when his salary dropped by $10,000, and in
November 2017, when it dropped by another $10,000.
After Farmers filed a reply and the trial court held a
hearing, the court granted summary judgment for Farmers on
plaintiff’s claim of retaliation and his derivative claim of failing to
prevent retaliation. Specifically, the court ruled that (1) plaintiff
did not engage in any protected activity that could give rise to a
retaliation claim because his internal complaint did not allege—
and did not put Farmers on notice of any possible—age
discrimination, and (2) there was no causal link between
plaintiff’s complaint and any adverse employment action because
Farmers implemented the phased drop in his salary in May 2016,
which was more than seven months before plaintiff filed his
internal complaint in December 2016. The court also overruled
plaintiff’s evidentiary objections to the Change in Employment
Conditions form and the sixth paragraph of Smith’s declaration
recounting that her supervisor had approved the phased salary
reduction plan and that the plan had been memorialized in the
Change in Employment Conditions form.
C. Entry of judgment and appeal
Following the entry of judgment, plaintiff filed this timely
appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting
summary judgment on his claims of retaliation and failure to
prevent retaliation. Because a claim for failure to prevent
retaliation under FEHA is necessarily premised on a valid claim
7
for retaliation (Thompson v. City of Monrovia (2010) 186
Cal.App.4th 860, 880), the viability of plaintiff’s lawsuit hinges on
whether the trial court erred in granting summary judgment on
plaintiff’s retaliation claim.
A court errs in granting summary judgment if there are
“genuine” or “triable” issues of fact to be resolved at trial—that is,
if “‘the evidence would allow a reasonable trier of fact to find . . .
in favor of the party opposing the [summary judgment] motion.’”
(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860
(Serri), quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 845; see Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th
358, 365.) We review a trial court’s summary judgment ruling
independently, without regard to its conclusions or its reasoning.
(Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437,
455.) In so doing, we may not weigh conflicting evidence or
assess the credibility of witnesses (Sandell v. Taylor-Listug, Inc.
(2010) 188 Cal.App.4th 297, 319), and must resolve any doubts
against summary judgment and in favor of trial (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 415).
Among other things, FEHA makes it unlawful “[f]or any
employer . . . to discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices
forbidden under” FEHA. (Gov. Code, § 12940, subd. (h).) In
evaluating such claims, California uses a burden-shifting
mechanism. The employee must first establish a prima facie case
of retaliation by producing evidence to show that “(1) he . . .
engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042
8
(Yanowitz).) If he meets this burden, then it is rebuttably
presumed that the employer engaged in retaliation, and the
burden shifts to the employer to set forth “a legitimate,
nonretaliatory reason for the adverse employment action.” (Ibid.)
The burden then “shifts back to the employee to prove intentional
retaliation.” (Ibid.)
The burden-shifting mechanism works differently when
evaluating a summary judgment motion. (Serri, supra, 226
Cal.App.4th at p. 861.) Where, as here, the employer is the
movant for summary judgment, the employer bears the initial
burden to disprove one or more elements of the employee’s prima
facie case or to adduce evidence supporting a legitimate,
nonretaliatory reason for the adverse employment action. (Ibid.;
Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 741.) If
it does so, then the burden shifts to the employee to produce
“substantial evidence” that (1) “‘the employer’s stated reasons
were untrue or pretextual,’” or (2) “‘the employer acted with a
[retaliatory] animus.’” (Serri, at p. 861, quoting Cucuzza v. City
of Santa Clara (2002) 104 Cal.App.4th 1031, 1038; see Choochagi
v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 457.)
We agree with the trial court’s conclusion that plaintiff has
failed to establish a triable issue of fact on two of the three
elements of his retaliation claim.
I. Protected Activity
An employee engages in activity protected by FEHA if he
“opposes activity [he] reasonably believes constitutes unlawful
discrimination,” but not if he makes “complaints about personal
grievances.” (Yanowitz, supra, 36 Cal.4th at p. 1047; Gov. Code,
§ 12940, subd. (a) [prohibiting discrimination on the basis of age,
among other characteristics].)
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Here, it is undisputed that plaintiff’s internal complaint
made no mention of age discrimination whatsoever. Instead, the
complaint alleged that plaintiff was “treated unfair[ly]” and
“retaliated against” because Wedding boxed him out of the job he
wanted and, in support of that allegation, the complaint recited a
litany of reasons why Wedding had reason to dislike him and a
litany of additional ways in which she had manifested that
dislike. Because the sole evidence of protected activity
underlying plaintiff’s retaliation claim is the internal complaint,
Farmers carried its initial burden of establishing the absence of
the protected activity element of plaintiff’s retaliation claim.
Plaintiff offers four reasons why, in his view, Farmers
failed to carry its burden because his internal complaint does
allege age discrimination or, alternatively, he carried his burden
of producing evidence substantial enough to raise a triable issue
of fact.
First, plaintiff asserts that an employee is “not required to
use legal terms or buzzwords when opposing discrimination”
(Yanowitz, supra, 36 Cal.4th at p. 1047), so his failure to
expressly refer to age discrimination is of no moment. But
plaintiff’s internal complaint is not deficient for failing to describe
age discrimination using the right words; rather, it is deficient for
failing to describe age discrimination at all.
Second, plaintiff contends that one of Farmers’s corporate
investigators testified in his deposition that plaintiff’s internal
complaint “involved age discrimination.” The investigator so
testified only after he was shown what the attorney examining
him represented to be part of plaintiff’s internal complaint and
that contained the words, “claims of retaliation and age
discrimination.” But no part of plaintiff’s internal complaint in
10
the record contained the phrase read to the investigator by the
examining attorney. The fact that the examining attorney
induced the investigator to parrot back a phrase that the
attorney misrepresented was in a document—when it is
undisputed that the phrase was not in that document—does not
create a triable issue of fact. (See Western Digital Corp. v.
Superior Court (1998) 60 Cal.App.4th 1471, 1487 (Western
Digital) [“‘[A] trier of fact may not indulge in inferences rebutted
by clear, positive and uncontradicted evidence.’ [Citation.]”].) If
it did, we would be condoning—and hence encouraging—trickery
and deceit.
Third, plaintiff posits that the manner in which Farmers
processed plaintiff’s internal complaint creates substantial
evidence that Farmers understood the complaint to allege age
discrimination. Specifically, plaintiff notes that Farmers (1)
labeled it as a “Level 2” investigation, (2) ordered it to be
investigated alongside two other internal complaints alleging age
discrimination, and (3) routed the investigation through its
Corporate Investigative Function Steering Committee. But none
of these observations raises a triable issue of fact. A “Level 2”
investigation simply refers to a possible “breach of company
rules” that are “routine” (as opposed to the more serious “Level 1”
investigation that “involves a very high degree of legal reputation
or financial risk”); the “Level” classification says nothing about
the nature of claim. The pairing of plaintiff’s internal complaint
with other complaints is a function of the fact that complaints are
to be jointly investigated because they involve common personnel,
witnesses, or a possible trend; here, all three internal complaints
were filed by employees working in the Unit and included
accusations at Wedding. Routing the investigation through the
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Steering Committee means that the complaint potentially
implicates “company policy” and “may involve a potential
violation of law”; again, it says nothing about the nature of the
policy or law violated.
Lastly, plaintiff argues that one of Farmers’s lawyers told
him, in the summer of 2017, that his internal complaint had
“some merit.” But this evaluation spoke to the merits of what
plaintiff alleged in that complaint—and that complaint did not
allege any age discrimination.
II. Causal Link
As noted above, a prima facie case for retaliation under
FEHA requires proof of a “causal link” between the protected
activity and the adverse employment action suffered by the
plaintiff. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Because a
reduction in an employee’s salary qualifies as an adverse
employment action (e.g., Pinero v. Specialty Restaurants Corp.
(2005) 130 Cal.App.4th 635, 640), and because it undisputed that
plaintiff’s pay dropped in May and November 2017, whether
Farmers has established the absence of the causal link element
depends entirely on whether there is any evidence of a link
between that drop in pay and plaintiff’s act of filing his internal
complaint.
There is no evidence of such a link, and we reach this
conclusion for two reasons. First, the undisputed facts show that
Farmers adopted its phased salary reduction plan for plaintiff in
May 2016, which was nearly eight months before plaintiff filed
his internal complaint; as a result, the pay cut plaintiff cites as
the sole adverse employment action in this case could not have
been in retaliation for filing the internal complaint. Second, even
if we were to accept plaintiff’s argument that Farmers decided to
12
cut plaintiff’s pay for the first time after he filed his internal
complaint (and, by implication, that Farmers subsequently
fabricated and backdated the seemingly contemporaneous
Change in Employment Conditions form), plaintiff has failed to
adduce any evidence whatsoever that the persons at Farmers
responsible for the 2017 pay cuts knew about his internal
complaint. (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412,
429 [summary judgment appropriate where “there is no evidence
that anyone involved in the decision to terminate plaintiff’s
employment knew about the complaint or that it factored into
their determination”].) Given that Farmers employs thousands of
people, plaintiff essentially asks us to infer that the employee(s)
who learned of his internal complaint somehow told the unnamed
employee(s) who controlled his pay levels in 2017 about that
complaint, but this inference is based on nothing but speculation
and hence cannot constitute substantial evidence. (Batarse v.
Service Employees Internat. Union, Local 1000 (2012) 209
Cal.App.4th 820, 834; Diego v. City of Los Angeles (2017) 15
Cal.App.5th 338, 349 [“An inference may not be based on
speculation or surmise”].)
Plaintiff marshals two categories of arguments in response.
A. Inadmissibility of change in employment form
Plaintiff asserts that Farmers cannot establish that its
phased salary reduction plan for him was in place in May 2016
because (1) the Change in Employment Conditions form
documenting that plan is not admissible, and (2) the form is the
sole evidence of Farmers’s plan.
Neither of these premises is valid.
Even if we opt to sidestep the split of authority regarding
the standard of review for evidentiary questions in summary
13
judgment motions by engaging in de novo review (Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 535), the first premise is invalid
because we independently conclude that the Change in
Employment Conditions form is admissible as a business record
under Evidence Code section 1271, which means it satisfies both
the hearsay rule and is properly authenticated. (Remington Invs.
v. Hamedani (1997) 55 Cal.App.4th 1033, 1043 [laying foundation
under Evidence Code section 1271 satisfies hearsay rule and
authentication requirements]; People v. Dean (2009) 174
Cal.App.4th 186, 197, fn. 5.) Evidence Code section 1271
provides that “a writing made as a record of an . . . event” is
admissible “to prove the . . . event” occurred if (1) “[t]he writing
was made in the regular course of a business,” (2) “[t]he writing
was made at or near the time of the . . . event,” (3) “[t]he
custodian or other qualified witness testifies to its identity and
the mode of its preparation,” and (4) “[t]he sources of information
and method and time of preparation were such as to indicate its
trustworthiness.” (Evid. Code, § 1271; Garibay v. Hemmat (2008)
161 Cal.App.4th 735, 742.) These requirements are met here: (1)
the Change in Employment Conditions form is on a standard
Farmers form, which indicates that it is made in the regular
course of Farmers’s business; (2) the form was created on May 2,
2016, which was within days or weeks of plaintiff approaching
Human Resources Consultant Smith to request the phased salary
reduction plan; (3) Smith and plaintiff’s supervisor in the
consultant position both identified the form, and Smith explained
that it was prepared to “memoralize[]” the phased salary
reduction plan approved by Farmers; and (4) the form and
Smith’s testimony about the form, as well as Farmers’s
subsequent adherence to the schedule for the drops in salary,
14
indicate the form’s trustworthiness. (Accord, Rivcom Corp. v.
Agric. Labor Relations Bd. (1983) 34 Cal.3d 743, 774, fn. 28 [“up-
to-date employee records” and employer’s “reliance on them
amply establish[] their trustworthiness”].)
Plaintiff resists our analysis of the business records
exception with three arguments. To begin, he asserts that the
Change in Employment Conditions form is not trustworthy
because it is not completely filled out, bears no signatures, and
has the “waiting for approval” box checked without any
explanation. “However, ‘that a business record contains some
omissions does not necessarily render unreliable the information
the record includes.’” (Jazayeri v. Mao (2009) 174 Cal.App.4th
301, 323 (Jazayeri), quoting People v. Hovarter (2008) 44 Cal.4th
983, 1011.) Relatedly, he asserts that the form is inconsistent
with the letter he received on May 4, 2016 stating that his
“annual base salary” was $120,659.14. But there is no
inconsistency because the phased salary reduction plan
contemplated that his starting salary would initially stay the
same as for the division manager position (that is, $120,659.14),
and that the first salary drop would take effect a year later.
Next, plaintiff argues that Smith lacked sufficient personal
knowledge to authenticate the form because she said that the
phased salary reduction plan “was memorialized” (in the passive
voice) and did not specify who memorialized it. But Smith
attested to her “personal knowledge” of its memorialization, and
the person authenticating a business record need not be its
author (Jazayeri, at p. 324). Lastly, plaintiff points out that
Smith was not the form’s custodian. But the rule only requires
authentication by a “qualified witness”; the custodian is not
necessary as long as the authenticating witness has the requisite
15
knowledge. (Ibid.; People v. Matthews (1991) 229 Cal.App.3d 930,
940.) Smith did.
The second premise of plaintiff’s argument—namely, that
the form was the sole evidence of Farmers’s phased salary
reduction plan—is also invalid because both Smith and plaintiff’s
new supervisor, Gregory Koch, also declared that Smith had
obtained authority to implement the phased salary reduction
plan. Because plaintiff did not object to this evidence, it is
properly before us and provides independent evidence that
Farmers had committed to the phased salary reduction plan long
before plaintiff filed his internal complaint.4 (Code Civ. Proc.,
§ 437c, subds. (b)(5), (c), (d); see Serri, supra, 226 Cal.App.4th at
p. 851, fn. 11.)
B. Plaintiff’s inconsistent deposition testimony
Plaintiff contends that the timing of Farmers’s phased
salary reduction plan is still in dispute because, in his deposition
in this case, he testified that his salary at Farmers was supposed
to stay “the same” when he moved from the division manager
position to the consultant position, such that the salary
reductions he suffered in May and November 2017, respectively,
must have been in retaliation for his December 2016 internal
complaint. This deposition testimony flatly contradicts what
plaintiff previously stated under oath in a deposition and a
declaration in other litigation against Farmers, where he testified
that his “new job” “require[d him] to take” a “four salary grade
demotion” and a nearly “$30,000” “downgrade in pay” and that he
was “forced to” do so “in an effort to keep [his] employment with
4 For these reasons, we have no occasion to decide whether
Smith’s supervisor’s authorization of the phased salary reduction
plan fits within the state of mind exception to the hearsay rule.
16
Farmers.” Where, as here, a plaintiff has already made a “clear
and unequivocal admission” in prior declarations and depositions,
his subsequent deposition testimony contradicting those prior
admissions is to be disregarded and is “‘no[t] substantial evidence
of the existence of a triable issue of fact.’ [Citation.]” (D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1, 21; Shin v. Ahn
(2007) 42 Cal.4th 482, 500, fn. 12; State Farm Mut. Auto. Ins. Co.
v. Eastman (1984) 158 Cal.App.3d 562, 573; cf. Scalf v. D.B. Log
Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [disregard of
plaintiff’s later statements does not “countenance ignoring other
credible evidence that contradicts or explains that party’s
answers or otherwise demonstrates there are genuine issues of
factual dispute”].)
Plaintiff responds that his prior sworn statements do not
clearly and unequivocally conflict with his most recent deposition
testimony because his prior statements merely reflected his state
of knowledge when he made those statements in 2018—not what
he knew at the time he took the new position in May 2016. This
construction of plaintiff’s prior sworn statements is not supported
by the statements themselves. Plaintiff stated he was “required”
and “forced” to take the “demotion” and “downgrade in pay” “to
keep [his] employment.” Because the only time plaintiff was in
jeopardy of losing his job was during the 60-day window between
March and May 2016, his efforts to keep that job necessarily
occurred during that window. Although, as plaintiff points out,
we are required to indulge all reasonable inferences against the
grant of summary judgment (e.g., Binder v. Aetna Life Ins. Co.
(1999) 75 Cal.App.4th 832, 854), this does not permit us to give a
tortured and unreasonable reading to plaintiff’s words to save
plaintiff from his own prior admissions. (Accord, Western Digital,
17
supra, 60 Cal.App.4th at p. 1487 [“‘[A] trier of fact may not
indulge in inferences rebutted by clear, positive and
uncontradicted evidence.’ [Citation.]”].)
DISPOSITION
The judgment is affirmed. Farmers is entitled to its costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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