Wasserstrom v. County of Los Angeles CA2/1

Filed 9/25/15 Wasserstrom v. County of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LEMOR WASSERSTROM, B254447
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC067373)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ramona
G. See, Judge. Affirmed.
Weissburg Law Firm and Diane B. Weissburg for Plaintiff and Appellant.
Gutierrez, Preciado & House, Calvin R. House, Nohemi Gutierrez Ferguson,
Sarosh Qaiser and Ann E. Wu for Defendants and Respondents.
____________________________________________
Lemor Wasserstrom (plaintiff), also known as Lemor Warzamn, filed an action
against the County of Los Angeles Department of Children and Family Services (DCFS),
Tedji Dessalegn, Rosa Tang, and Germaine Key (collectively, defendants) based on
allegations of race and religious discrimination, hostile work environment, whistleblower
retaliation, negligence, failure to investigate, and defamatory remarks. The trial court
granted defendants’ motion for summary judgment.
On appeal from the judgment, plaintiff contends the trial court abused its
discretion in refusing her request to continue the hearing on the motion, because the court
had not reviewed the submitted documents prior to the hearing. Further, the court
violated her due process right to a fair hearing by not providing a full and fair opportunity
for oral argument and not expressly ruling on the admissibility of plaintiff’s evidence at
the hearing. She was not required to exhaust her administrative remedies as a
prerequisite to pursuing her claim in court for unlawful retaliation in violation of public
policy. Moreover, summary judgment was improper, because questions of material fact
existed. Plaintiff’s contentions are not meritorious. We affirm the judgment.
BACKGROUND
The verified operative complaint alleged: About December 16, 2001, DCFS hired
plaintiff to work at its “Torrance Regional Office . . . as a Supervising Children’s Social
Worker (‘SCSW’),” and about August 1, 2010, she was “re-assigned as out-of-class
Children’s Services Administrator (CSA) I.” Plaintiff was and is the only “white, Jewish
female” at that location. About September 8, 2011, plaintiff applied for the positions of
CSA I and “Assistant Regional Administrator (‘ARA’).” Dessalegn, Tang, and Key were
DCFS supervisors.
Dessalegn and Tang notified plaintiff she was not selected for either position,
although “she had been doing the [CSA I] job for over one year.” About a week later,
Tang “made derogatory statements about her, and told her she would never get either
position because of her race and religion”; Tang also stated Key was “right about”
plaintiff, i.e., Key said plaintiff “was a racist because of her religion and race” and that
2
plaintiff “took only non-white and non-Jewish children into protective custody.” About
three weeks later, plaintiff met with Tang and Dessalegn to discuss Tang’s gossiping to
supervisors at the office “about [the above] conversation, including [Key’s] statements,
and to revisit [p]laintiff’s non-appointment to the CSA I or an ARA position.” “Shortly
after that meeting [p]laintiff received an Appraisal of Promotability,” which Tang had
prepared, giving plaintiff a score of “94 out of 100, which placed her . . . out of the range
of promotion to either an ARA or CSA I position.”
“From on or about August 2010, defendants, and each of them, continuously
subjected [p]laintiff to unfair and disparate treatment because of her race and religion, to
racial stereotypes, to the display of racial animus, and to a hostile environment.”
“[A]bout October 2011, plaintiff submitted several complaints to defendants about the
violation of her civil rights due to her religion, and national origin”; “defendants, and
each are under a continuing duty to investigate and stop such conduct, under a continuing
duty but [they] failed to investigate and halt the offending conduct and continuing
retaliation against plaintiff for having reported [such misconduct].” “Each . . .
defendant[] also retaliated against plaintiff, and continues retaliating against her, for
having made said complaints to defendants, about her race, national origin, and religion.”
The verified complaint pleaded 10 causes of action for, respectively: (1) race
discrimination (Gov. Code, § 12940 et seq.) against DCFS; (2) hostile work environment
(Gov. Code, § 12940 et seq.) against defendants; (3) whistleblower retaliation (Gov.
Code, § 12940 et seq.) against DCFS; (4) whistleblower retaliation (Lab. Code, § 1102.5)
against DCFS; (5) racial discrimination (Lab. Code, § 1102.5) against DCFS;
(6) religious discrimination against DCFS in violation of the California Fair Employment
and Housing Act (FEHA; Gov. Code, § 12900 et seq.); (7) negligence against DCFS,
Dessalegn, and Tang; (8) failure to investigate (Gov. Code, § 12940 et seq.) against
DCFS; (9) civil penalties under continuing violations doctrine against DCFS; and
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(10) defamation against defendants. Plaintiff sought punitive damages against Dessalegn,
Key, and Tang based on the second, seventh, and 10th causes of action.1
Defendants answered by generally denying the complaint’s material allegations
and setting forth 52 affirmative defenses.
The trial court sustained defendants’ demurrer to the fifth and ninth causes of
action without leave to amend.2
Defendants filed a motion for summary judgment or summary adjudication.
Plaintiff filed opposition.
She also filed objections to defendants’ evidence as well as specific objections to
and motions to strike the declarations of the individual defendants and others submitted
in support of their motion for summary judgment or summary adjudication.
On January 3, 2014, defendants filed a reply consisting of a document setting forth
objections to the opposition and a separate document in which they objected to plaintiff’s
responses to their separate statement of undisputed material facts.
On January 6, 2014, plaintiff filed objections to defendants’ reply as late and a
motion to strike. On the same date she also filed a corrected version of her earlier
opposing declaration.
On January 9, 2014, following a hearing on the motion, the trial court took the
matter under submission.
On January 16, 2014, the trial court granted the summary judgment motion.3 On
February 3, 2014, the summary judgment order in favor of defendants and against
plaintiff and the judgment of dismissal were entered.
1 The seventh cause of action, however, was not pleaded against Key.
2 On our own motion, we augmented the record with defendants’ answer to the
complaint and the trial court’s minute order sustaining without leave to amend the
demurrer to the fifth and ninth causes of action and striking the allegations and prayer for
punitive damages.
3
The minutes reflect the trial court granted defendants’ “Motion for Summary
Adjudication.” We deem this recital to be a clerical error. A review of the entire minutes
4
DISCUSSION
1. Standard of Review
“This case comes to us on review of a summary judgment. Defendants are entitled
to summary judgment only if ‘all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.’ (Code Civ. Proc., § 437c, subd. (c).) To determine whether triable issues of fact do
exist, we independently review the record that was before the trial court when it ruled on
defendants’ motion. [Citations.] In so doing, we view the evidence in the light most
favorable to plaintiff[] as the losing part[y], resolving evidentiary doubts and ambiguities
in [her] favor. [Citation.]” (Martinez v. Combs (2010) 49 Cal. 4th 35, 68.)
We determine whether the trial court’s ruling is correct, not its reasons or
rationale. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal. App. 4th 1370, 1376.) “‘In
practical effect, we assume the role of a trial court and apply the same rules and standards
which govern a trial court’s determination of a motion for summary judgment.’
[Citation.]” (Shugart v. Regents of University of California (2011) 199 Cal. App. 4th 499,
505.) “We review for abuse of discretion any evidentiary ruling made in connection with
the motion. [Citation.]”4 (Ibid.) A showing of prejudice is required for reversal of a
summary judgment based on erroneous exclusion or admission of evidence. (Lewis v.
City of Benicia (2014) 224 Cal. App. 4th 1519, 1538 [exclusion]; Blackhawk Corp. v.
Gotham Ins. Co. (1997) 54 Cal. App. 4th 1090, 1098 [admission].) In other words, the
burden is on the appellant to show “it is reasonably probable that the appellant would
have obtained a more favorable result absent the error, so the error resulted in a
in context reflects the court ruled against plaintiff on each of the extant causes of action,
which signifies the court in fact was granting summary judgment.
4 Our Supreme Court has not yet determined whether a trial court’s rulings on
evidentiary objections to written evidence in this context is reviewed for abuse of
discretion or de novo. We do not reach this issue, because the results are the same under
either standard. (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal. App. 4th 133, 144.)
5
miscarriage of justice. [Citations.]” (Rayii v. Gatica (2013) 218 Cal. App. 4th 1402,
1415.)
2. Refusal to Continue Hearing Not Abuse
Plaintiff contends the trial court abused its discretion in refusing her request to
continue the hearing on the motion, because the court had not reviewed the submitted
documents prior to the hearing. No abuse transpired.
We review the trial court’s denial of a continuance for abuse of discretion. (Scott
v. CIBA Vision Corp. (1995) 38 Cal. App. 4th 307, 313–314.) The burden is on the
requesting party to show good cause for a continuance. (Mahoney v. Southland Mental
Health Associates Medical Group (1990) 223 Cal. App. 3d 167, 172.)
During the hearing, plaintiff’s counsel asked if she could make a copy of the
court’s tentative ruling, because she had only about 10 minutes to read it and it was five
pages. The court denied the request and invited her to read it at the desk if she wanted
more time. The court noted counsel had “over 100 categories—or exhibits and/or
depos[itions] and so on that [she] objected to. And within that [she had] multiple
objections which I’m still working through. I think there were close to 400 objections
[made] between the [plaintiff and defendants.]”
Plaintiff’s counsel continued to argue for a continuance: “[I]n order for me to be
able to effectively argue this, I would need, first of all, to know the court’s rulings on all
of the objections that I filed” and “sitting here and trying to digest five pages of . . .
tentative rulings without having the objections and the rulings on those objections is very
difficult for me.” The court responded: “I am still typing up all of my comments to all of
those objections” and counsel could wait until the court was finished. The court denied
her request for a continuance. After counsel advised she had not read the entire tentative
ruling, the court responded counsel could take as much time as she wanted to do so. The
court then took the matter under submission when counsel did not accept the court’s
offer.
6
Contrary to plaintiff’s position, no good and sufficient reason was presented by
plaintiff for continuing the hearing. Trial courts “retain extensive discretion regarding
how the hearing is to be conducted, including imposing time limits and adopting tentative
ruling procedures[.]” (Mediterranean Construction Co. v. State Farm Fire & Casualty
Co. (1998) 66 Cal. App. 4th 257, 265 (Mediterranean).) A trial court is not required to
issue a tentative ruling. (Cal. Rules of Court, rule 3.1308(e).) The court also is not
required to rule on evidentiary objections prior to or at the hearing on a summary
judgment motion. Rather, at the hearing, the court should encourage parties to “specify
the evidentiary objections they consider important, so that the court can focus its rulings
on evidentiary matters that are critical in resolving the summary judgment motion.”
(Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 532–533 (Reid).)
In this instance, the court afforded plaintiff’s attorney ample opportunity to read
and study its tentative ruling, which she declined. Plaintiff’s counsel also declined to
identify the evidentiary objections she considered to be crucial, which might have led the
court to focus the argument or even then to consider a continuance for further briefing on
evidentiary issues of particular importance. As plaintiff acknowledges in her brief, the
court in Reid admonished at the hearing “the parties . . . should specify the evidentiary
objections they consider important[.]” (Reid, supra, 50 Cal.4th at pp. 532–533.) Finally,
plaintiff cites no authority for her position that the court was required to issue either its
tentative or its final rulings on evidentiary objections prior to inviting counsel’s argument
at the hearing. When a point is asserted without argument and authority for the
proposition, “it is deemed to be without foundation and requires no discussion by the
reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635, 647.)
3. No Violation of Due Process Shown
Plaintiff contends the trial court violated her due process right to a fair hearing by
not providing a full and fair opportunity for oral argument and not expressly ruling on
plaintiff’s evidence except by way of a “blanket ruling” after the hearing. Plaintiff’s due
process violation claims are without merit.
7
The right to a hearing on a motion for summary judgment is a creature of statute,
not the federal or state Constitution. (Code Civ. Proc., § 437c, subd. (a).) Further,
whether oral argument must be allowed at such hearing has been a matter of dispute at
the appellate level. (See Sweat v. Hollister (1995) 37 Cal. App. 4th 603, 613–614
[opportunity for oral argument before final ruling not required], disapproved later as dicta
in Brannon v. Superior Court (2004) 114 Cal. App. 4th 1203, 1205 (Brannon), and on
other grounds in Santisas v. Goodin (1998) 17 Cal. 4th 599, 609, fn. 5; contra,
Mediterranean, supra, 66 Cal.App.4th at pp. 265–266 [right to oral argument]; see also
Lewis v. Superior Court (1999) 19 Cal. 4th 1232, 1248, fn. 10 [“no occasion in this case
to consider the validity of either the Sweat or Mediterranean decisions”].)
In this instance, the trial court held a hearing at which it invited oral argument on
any issue relating to the motion. “[A] court has substantial discretion to impose
reasonable limitations, including to limit the time and subject matter of the argument.”
(Brannon, supra, 114 Cal.App.4th at p. 1211.) Plaintiff had a full and fair opportunity to
argue her position orally at the hearing. The court did not restrict or foreclose her
counsel from arguing and expressly invited counsel to make “whatever arguments you
want to make on your motions, please make them now, whatever they are.” Plaintiff’s
counsel chose not to present those arguments, however, instead telling the court that
counsel would be unable to address the motion unless the court followed counsel’s
demand that the court first specify rulings on every one of the pending evidentiary
objections.
Further, the absence of final rulings on plaintiff’s evidentiary objections to
defendants’ evidence in its tentative ruling or at the time of the hearing is of no
significance, because the court was not required to make such findings prior to or at the
hearing. Moreover, the trial court did not rule on the motion for summary judgment or
summary adjudication at the hearing. Rather, the court took the matter under submission,
and granted the motion only “[a]fter further review of all moving and opposition papers,
and after consideration of . . . argument presented by counsel[.]” Accordingly, the court
8
did not grant the summary judgment motion without having reviewed and considered all
the submitted supporting and opposing documents, nor does plaintiff claim otherwise.
No due process violation occurred.
Further, no due process violation arises from the trial court’s final rulings on
plaintiff’s objections to defendants’ evidence. Plaintiff contends that in overruling each
and every one of her “27 different objections” to certain of defendants’ statements of
undisputed facts, the court abused its discretion by issuing a “blanket ruling” instead of
“expressly ruling on the individual objections.”5 (Serri v. Santa Clara University (2014)
226 Cal. App. 4th 830, 857 [“blanket ruling sustained all of the objections and observed
that many of the exhibits lacked foundation, were inadmissible hearsay, or were
irrelevant because they were not cited in Serri’s opposition . . . ‘hardly a ruling,’ provided
no meaningful basis for review, and could be treated as a failure to rule”].) The record
refutes this contention.
As a general matter the court ruled: “First, [p]laintiff sets forth a series of
objections to facts stated in [d]efendants’ Separate Statement and not to evidence.
Second, the actual evidentiary objections are included within the Declaration of Diane B.
Weissburg[, plaintiff’s counsel,] and are not in the proper format mandated by California
Rules of Court[, rule] 3.1354(b). Further, no proposed order was submitted. (See [rule]
3.1354(c).) Despite these procedural defects, the Court makes the following rulings to
[p]laintiff’s objections.”
The court then ruled on plaintiff’s specific objections as follows: (1) the
objections to defendants’ “Separate Statement of Facts Nos. 12, 32, 33, 45, 77, 78, 93, 95,
103, 105-115, 147, 149, 151, 156, 158, and 159” were overruled, because “[p]laintiff
does not object to evidence, but only to [d]efendants’ facts”; (2) “Objection Nos. 1-4 to
the Declaration of Germaine Key” were overruled; (3) “Objection Nos. 1-11 to the
5 We note the court sustained plaintiff’s objections to defendants’ late reply, struck
the reply, and overruled defendants’ objection to plaintiff’s declaration in light of her
corrected declaration. As such, plaintiff does not, and cannot, contend that the trial court
excluded any of plaintiff’s evidence in ultimately ruling on the motion.
9
Declaration of Rosa Tang,” were overruled with the notation “[p]laintiff objected to
Paragraph No. 12 of this declaration but there is no [such] paragraph”; (4) “Objection
Nos. 1-9 to the Declaration of Robert Haley” were overruled; (5) “Objection Nos. 1-12 to
the Declaration of Tedji Dessalegn” were overruled; (6) “Objection Nos. 1-3 to the
Declaration of Diane Wagner” were overruled; (7) “Objection Nos. 1-3 to the Declaration
of Lynette Morgan-Nichols” were overruled; and (8) “Objection Nos. 1-10 to the
Declaration of Michelle Saulters” were overruled.6
4. Exhaustion Issue Immaterial Where No Retaliation Claim Stated
Plaintiff contends she was not required to exhaust her administrative remedy
before the Labor Commissioner prior to filing the fourth cause of action for retaliation
under Labor Code section 1102.5 (section 1102.5). Resolution of this issue here is
immaterial to whether summary judgment should have been granted. Even if plaintiff’s
failure to proceed first before the Labor Commissioner does not defeat her claim, her
failure to allege facts sufficient to state a cause of action under section 1102.5 does.
The trial court concluded defendants were entitled to prevail as a matter of law on
the fourth cause of action for whistleblower retaliation in violation of section 1102.5 and
gave two alternative reasons for its conclusion. The court found plaintiff failed “to
6 We have reviewed each and every of one of the overruled objections to these
declarations. It bears emphasizing that plaintiff made boilerplate evidentiary objections
to every single paragraph of every declaration, most often relying on objections such as
“relevance; immaterial; argument; vague; ambiguous; misleading; misstates facts.”
Plaintiff asserted these objections repeatedly to clearly admissible statements, within the
personal knowledge of the declarants, on issues that plaintiff herself was raising. Just by
way of example, having put in issue the race and religion of the supervisors who made
the promotion decision, plaintiff objected on the basis of “Relevance; immaterial;
argument” to the paragraph in the declaration of Rosa Tang stating: “My race is Asian.”
“My religion is Christian.” Plaintiff wholly fails to make any argument that any
evidentiary ruling by the trial court was incorrect. Further, plaintiff does not even
attempt to meet her burden of showing that the admission of any evidence over her
objections, even assuming they had merit, resulted in prejudice that would entitle plaintiff
to a reversal of the court’s summary judgment ruling. (Blackhawk Corp., supra, 54
Cal.App.4th at p. 1098.)
10
establish that she engaged in protected conduct under [section] 1102.5 as [she] did not
report any violations of law or a failure to comply with regulations. The Fourth Cause of
Action also fails due to [p]laintiff’s failure to file a complaint with the Labor Commission
pursuant to Labor Code [section] 98.7.”7
Prior to 2013, the law was unsettled as to whether exhaustion of administrative
remedies before the Labor Commissioner was a prerequisite to filing a civil action under
section 1102.5. (See Satyadi v. West Contra Costa Healthcare Dist. (2014) 232
Cal. App. 4th 1022, 1029–1031 (Satyadi); see also Campbell v. Regents of University of
California (2005) 35 Cal. 4th 311, 321–322, 329, 333; but see Lloyd v. County of Los
Angeles (2009) 172 Cal. App. 4th 320, 326–327, 328, 331–332.)
In 2013, the Legislature amended the Labor Code to address the requirement of
exhaustion of administrative remedies or procedures.8 (Stats. 2013, ch. 577, §§ 3 & 4
[Sen. Bill No. 666].) In short, pursuant to these amendments, an individual pursuing a
judicial claim under section 1102.5 is not required to comply with this requirement. At
the end of 2014, the court in Satyadi concluded “the amendments merely clarified
existing law,” and thus, “they may be applied to this case without transgressing the
general rule against the retroactive application of statutes.” (Satyadi, supra, 232
Cal.App.4th at p. 1027.)
We need not, and therefore do not, decide whether plaintiff’s failure to pursue her
claim before the Labor Commissioner in the first instance bars her fourth cause of action.
Plaintiff does not challenge the trial court’s alternative reason for concluding, as a matter
of law, the fourth cause of action fails to allege facts sufficient to state a cause of action
7 The fifth cause of action (§ 1102.5, race discrimination) was dismissed.
8 Section 98.7 was amended to add subdivision (g), which provides: “In the
enforcement of this section, there is no requirement that an individual exhaust
administrative remedies or procedures.” Also added was section 244, subdivision (a),
which provides in pertinent part: “An individual is not required to exhaust administrative
remedies or procedures in order to bring a civil action under any provision of this code,
unless that section under which the action is brought expressly requires exhaustion of an
administrative remedy.”
11
against defendants. A trial court’s ruling will be upheld on any correct legal theory
applicable to the case as a matter of law. (D’Amico v. Board of Medical Examiners
(1974) 11 Cal. 3d 1, 19; cf. Cline v. Yamaga (1979) 97 Cal. App. 3d 239, 246–247.)
The issues on a motion for summary judgment are framed by those raised by the
pleadings, and evidence presented in opposition to the motion therefore cannot create
issues outside of the pleadings or serve a substitute for an amendment that raises issues
entirely different from those of the complaint. “The purpose of the law of summary
judgment is to provide courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in fact necessary to resolve
their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843; see also
Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242, 1253 [scope of issues to be
determined delimited in the pleadings; materiality of the facts tendered in challenge to
cause of action framed by complaint; “‘separate statement of material facts . . . not a
substitute for an amendment of the complaint’”].)
In her opening brief, plaintiff asserts she reported certain child safety issues and
concerns to Key, Tan, and Dessalegn, and after her whistleblowing was unsuccessful, she
tried to report the issues to Joi Russell, Key’s boss, then to Human Resources and Phillip
Browning, the DCFS’s new director, and finally to “the State Department of Health
Services, Katherine Donald, Dr. Chad Brinderson, State Department of Mental Health,
and to State Community Care Licensing.” Further, “No one at County of Los Angeles
ever investigated [her] claims.” In retaliation, plaintiff “was refused promotions and
treated differently,” and defendants “tried to discredit her because she would not stop
reporting her concerns about child safety, which continues today.” She contends Key and
Tang began retaliating against her in 2008 for whistleblowing about child safety; and
“that conduct by them and with help from other non-white, non-Jewish managers,
continues today.” In 2009, Dessalegn was transferred to the Torrance office and got
involved with Tang and Key, neither of whom is Caucasian or Jewish. They conspired
with other managers and their employees to continue the adverse conduct against plaintiff
12
in an effort to drive her out. Plaintiff now “sits in a dead-end job waiting for the other
shoe to drop.” She is still employed by DCFS.
The complaint, however, does not allege any of these new theories or facts, nor
does the record reflect plaintiff sought leave to amend the complaint to make these
factual allegations, either before the summary judgment hearing, at the hearing, or
afterward through a motion for reconsideration of the grant of summary judgment. (Cf.
Huff v. Wilkins (2006) 138 Cal. App. 4th 732, 746 [denial of leave to amend not abuse
where unexplained delay and “no liability exists under the plaintiff’s new theory”]; Levy
v. Skywalker Sound (2003) 108 Cal. App. 4th 753, 770–771 [no leave to amend not abuse
where no explanation for delay of several months to file motion; no procedurally proper
motion filed; and no request for continuance to pursue matter].) Plaintiff therefore has
failed to meet her burden to show a material question of fact exists that would preclude
summary adjudication in favor of defendants on the fourth cause of action.
5. No Material Questions of Fact Established Regarding Racial or Religious
Discrimination
On this appeal, plaintiff focuses on one aspect of the three-stage burden-shifting
test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 [93 S. Ct. 1817], contending summary judgment was improper because material
factual questions exist as to whether defendants’ proffered legitimate reasons for their
actions were in fact improper pretextual reasons. Although plaintiff does not tie her
argument to specific causes of action, it appears that her focus on “pretext” is meant to
contest the trial court’s rulings on the first cause of action, alleging racial discrimination,
and the sixth cause of action, alleging religious discrimination, both in violation of
FEHA.9 In support of her argument that the trial court erred, plaintiff contends the trial
9 We note in her opening brief plaintiff does not claim error supported by record
references, legal argument, or citation to applicable authority as to any specific causes of
action other than the fourth cause of action (regarding retaliation under Labor Code
section 1102.5, previously discussed) and only challenges the first and sixth causes of
action by implication. “‘The reviewing court is not required to make an independent,
13
court improperly excluded consideration of various statements of defendants and others.
She asserts that such discriminatory comments were not simply “stray remarks” and
constituted a “pretext or ongoing discriminatory animus on the part of [defendants].”
Plaintiff has failed to carry her burden.
The first cause of action alleges a “refusal by defendants . . . to promote Plaintiff
to the item of Children’s Services Administrator” or to the position of Assistant Regional
Administrator based on racial discrimination because plaintiff is a “White Jewish
female.” As a result of such conduct, plaintiff alleges she suffered continuing
“substantial economic losses, including salary difference, retirement differences . . . and
further employment benefits” as well as “humiliation, embarrassment, ridicule, scorn, and
anguish.”
The sixth cause of action alleges plaintiff was “a Jewish female” and incorporates
the same allegations of a refusal to promote plaintiff, contending these actions were also
based on religious discrimination. In addition, the sixth cause of action alleges that
defendants were aware her “religious beliefs mandate observation of the Jewish Sabbath,
certain Jewish holidays requiring her not to work, and maintenance of Kosher dietary
laws.” She “requested time off for Jewish holidays during her employment with DCFS
and has had approved time off [for such] requests for said Jewish holidays.” “Despite
[her] religious beliefs and notwithstanding said authorized time off for Jewish holidays,
on or about August 2009, and thereafter, [defendants], and each of them, made
disparaging remarks regarding [her] religious beliefs.” As a result of such conduct and
unassisted study of the record in search of error or grounds to support the judgment.’
[Citations.]” (Guthrey v. State of California (1998) 63 Cal. App. 4th 1108, 1115; see also
People v. Dougherty (1982) 138 Cal. App. 3d 278, 282–283 [no discussion required where
contentions “bereft of factual underpinning, record references, argument, and/or
authority].) It is not the function of the reviewing court to “develop the . . . arguments
for” an appellant. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal. App. 4th 888, 890,
fn. 1.) Plaintiff for the first time explicitly addresses other causes of action in her reply
brief. It is too late in a reply brief to attempt to develop a legally cognizable argument.
(Aviel v. Ng (2008) 161 Cal. App. 4th 809, 821.)
14
religious discrimination, plaintiff “suffered continuing humiliation, mortification, scorn,
ridicule, contempt, and hatred.”
“California has adopted the three-stage burden-shifting test for discrimination
claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S. Ct.
1817]. [Citation.] ‘This so-called McDonnell Douglas test reflects the principle that
direct evidence of intentional discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test
allows discrimination to be inferred from facts that create a reasonable likelihood of bias
and are not satisfactorily explained.’ [Citations.]” (Sandell v. Taylor-Listug, Inc. (2010)
188 Cal. App. 4th 297, 307 (Sandell).) In the summary judgment context, “‘the trial court
will be called upon to decide if the plaintiff has met his or her burden of establishing a
prima facie case of unlawful discrimination. If the employer presents admissible
evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the
adverse employment action was based on legitimate, nondiscriminatory factors, the
employer will be entitled to summary judgment unless the plaintiff produces admissible
evidence which raises a triable issue of fact material to the defendant’s showing. In
short, by applying McDonnell Douglas’s shifting burdens of production in the context of
a motion for summary judgment, “the judge [will] determine whether the litigants have
created an issue of fact to be decided by the jury.”’ . . . Thus, ‘“[a]lthough the burden of
proof in a [discrimination] action claiming an unjustifiable [adverse employment action]
ultimately rests with the plaintiff . . . , in the case of a motion for summary judgment or
summary issue adjudication, the burden rests with the moving party to negate the
plaintiff’s right to prevail on a particular issue. . . . In other words, the burden is
reversed in the case of a summary issue adjudication or summary judgment motion.
. . .”’” [Citation.]’ [Citation.]” (Sandell, at p. 309.)
“‘“Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. These include the strength of the plaintiff’s prima facie
case, the probative value of the proof that the employer’s explanation is false, and any
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other evidence that supports the employer’s case . . . .” [Citation.]’ [Citation.]”
(Sandell, supra, 188 Cal.App.4th at p. 309.)
To establish a prima facie showing of discrimination, “generally an employee need
only offer sufficient circumstantial evidence to give rise to a reasonable inference of
discrimination.” (Sandell, supra, 188 Cal.App.4th at p. 310.) But “[o]nce the employer
has offered a legitimate, nondiscriminatory reason for the adverse employment action, a
‘“plaintiff must offer evidence that the employer’s stated reason is either false or
pretextual, or evidence that the employer acted with discriminatory animus, or evidence
of each which would permit a reasonable trier of fact to conclude the employer
intentionally discriminated. [Citation.]” [Citation.]’ [Citation.]” (Id. at p. 314.) “‘[A]n
employer is entitled to summary judgment if, considering the employer’s innocent
explanation for its actions, the evidence as a whole is insufficient to permit a rational
inference that the employer’s actual motive was discriminatory.’ [Citation.] It is not
sufficient for an employee to make a bare prima facie showing or simply deny the
credibility of the employer’s witnesses or to speculate as to discriminatory motive.
[Citations.] Rather, it is incumbent upon the employee to produce ‘substantial responsive
evidence’ demonstrating the existence of a material triable controversy as to pretext or
discriminatory animus on the part of the employer. [Citations.]” (Serri v. Santa Clara
University, supra, 226 Cal.App.4th at pp. 861–862.)
Here, the trial court concluded defendants were entitled to prevail, as a matter of
law, on both the first cause of action for racial discrimination and the sixth cause of
action for religious discrimination in violation of FEHA. Applying the McDonnell
Douglas test, the trial court found that the defendants “met their burden by demonstrating
a legitimate non-discriminatory basis for not selecting Plaintiff . . . for promotion over
Anita Rathi-Joy,” the candidate hired for the only open position plaintiff identified. The
court further found that the admissible evidence submitted “demonstrates that Plaintiff
was not the most qualified candidate and the more qualified candidate obtained the
position.” Plaintiff does not challenge the trial court’s ruling that defendants met their
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burden; nor could plaintiff succeed in such a challenge, given the extensive evidence
introduced by defendants. In support of their motion, defendants included numerous
exhibits, including declarations and deposition testimony of each of the persons involved
in the promotion decision affirmatively testifying as to qualifications of the applicants,
the process used, plaintiff’s undisputed ratings on promotional exams, the qualifications
of the applicant selected over plaintiff, and their denials that race and religion were
considered or discussed.
The trial court went on to find that plaintiff “fail[ed] to establish pretext . . . [and]
provide[d] no evidence demonstrating that race was a motivating factor in the
employment decision . . . [and] no evidence demonstrating a causal connection between
Plaintiff’s race and the decision not to promote Plaintiff.”
In the attempt to meet her burden to produce “substantial responsive evidence”
demonstrating the existence of a material triable controversy as to pretext or
discriminatory animus, plaintiff offers little more than her own conclusory and
speculative opinions. Her references are to a scattered and disconnected number of
comments and events, many of which occurred years before, or a year after, the decision
to promote someone other than plaintiff. Furthermore, plaintiff emphasizes the
possibility that she was denied the promotion because of complaints she made about child
safety, rather than because defendants acted based on racial or religious animus. When it
comes to evidence, and not simply speculation or conjecture, plaintiff’s case is wholly
lacking in terms of calling into question defendants’ explanation that DCFS selected
another candidate for promotion over plaintiff based on the appropriate testing,
evaluations, and interviews of the candidates, and without consideration of race and
religion at all. Plaintiff has failed to meet her burden: “considering the employer’s
innocent explanation for its actions, the evidence as a whole is insufficient to permit a
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rational inference that the employer’s actual motive was discriminatory.” (Serri v. Santa
Clara University, supra, 226 Cal.App.4th at p. 861.)10
The trial court also found plaintiff presented “no evidence to establish that she
suffered an adverse employment action due to her religion” or “she was denied any time
off when she requested vacation days for Jewish holidays.” Also, “there is no showing
that any remarks made by Key in 2008 and 2009 had any bearing on [the] adverse
promotion decision. In fact, there is no evidence that Key had any input in that process
especially where she had le[f]t long before the decision was made. Further, ‘stray
remarks do not establish discrimination,’” quoting from Gibbs v. Consolidated Services
(2003) 111 Cal. App. 4th 794, 801.
Again, nothing in the evidence cited by plaintiff undermines the trial court’s ruling
in this regard. The declarations cited by plaintiff do not offer any evidence to suggest
that plaintiff’s religion played any role in the decision to promote Ms. Rathi-Joy and not
plaintiff. As noted by the trial court, plaintiff also concedes she was never denied time
off for the Jewish holidays.
Nor did the trial court err by misapplying the stray remarks doctrine. “Under the
‘stray’ remarks doctrine, which has been employed by federal courts and, at times,
adopted by some California courts at the summary judgment stage of discrimination
cases, a ‘stray’ discriminatory remark that a court determines is unconnected to the
adverse employment action is insufficient evidence of a discriminatory motive, as a
10 In support of the claim that plaintiff raised material issues of disputed fact,
plaintiff cites repeatedly to plaintiff’s separate statement of disputed facts, a 69-page
document addressing 183 separate factual issues, with a mixture of argument, evidentiary
objections, and references to testimony and exhibits. “[A] separate statement is not
evidence; it refers to evidence submitted in support of or opposition to a summary
judgment motion.” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal. App. 4th 1361,
1378.) Plaintiff’s citation to this document in its entirety is not a proper citation to
evidence in support of her positions. Further, upon review, we do not find any admissible
evidence referenced in her separate statement and presented to the trial court that met her
burden to establish a material triable controversy as to pretext or discriminatory animus,
and we decline to consider any evidence not presented.
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matter of law, and may be wholly disregarded by the court. [Citations.] However, [our]
Supreme Court recently clarified that California courts are not to apply the stray remarks
doctrine because ‘its categorical exclusion of evidence might lead to unfair results.’
(Reid, supra, 50 Cal.4th at p. 517.)” (Sandell, supra, 188 Cal.App.4th at p. 320.)
The court in Reid, however, further clarified that “who made the comments, when
they were made in relation to the adverse employment decision, and in what context they
were made are all factors that should be considered” in determining whether the
comments create a triable issue of discrimination. (Reid, supra, 50 Cal.4th at p. 541.)
In this instance, the record indicates that the trial court did not blindly apply the
“stray” remarks doctrine and did not categorically exclude any remarks in reaching its
decision. Rather, the court took into account the context in which the remarks were made
in finding there was no nexus between those remarks and any adverse employment action
against plaintiff. Plaintiff’s claim of error therefore fails, because the court’s findings fall
within the parameters laid out by Reid concerning how such remarks are to be
considered.
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DISPOSITION
The judgment is affirmed. Defendants shall recover costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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