De Martin v. La Jolla Pharmaceutical CA4/1

Filed 8/17/20 De Martin v. La Jolla Pharmaceutical CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TIMOTHY DE MARTIN, D075026
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2017-
00009687-CU-WT-CTL)
LA JOLLA PHARMACEUTICAL
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed.
The Van Vleck Law Firm, Brian F. Van Vleck and Stuart H. Kluft for
Plaintiff and Appellant.
Gibson, Dunn & Crutcher, Jesse A. Cripps, Tiffany Phan and
Elizabeth A. Dooley for Defendant and Respondent.
Plaintiff Timothy De Martin (Plaintiff) appeals from a judgment in
favor of his former employer, defendant La Jolla Pharmaceutical Company
(Defendant), following the grant of Defendant’s motion for summary
judgment. Alleging that Defendant discriminated against him by
terminating his employment due to his religious creed, Plaintiff sued
Defendant in one cause of action under the California Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.; further undesignated
statutory references are to this code.)
On appeal, Plaintiff argues that, in response to Defendant’s evidence of
a legitimate nondiscriminatory reason for termination, he presented
sufficient evidence of pretext and/or discriminatory motive to defeat
Defendant’s summary judgment motion. We disagree and affirm the
judgment.
I. FACTUAL BACKGROUND1
Defendant is a biopharmaceutical company. In early 2016, BioPhase
Solutions, Inc. (BioPhase), a staffing agency, contacted Plaintiff, who lived in
Michigan, regarding a position with Defendant. Plaintiff accepted a position
with Defendant and, after moving to San Diego, began a temporary
assignment as a senior research associate on March 14, 2016.2 He reported
to Kimberly Bieder.
1 Because this is an appeal from a summary judgment in favor of
Defendant, we view the evidence in a light most favorable to Plaintiff,
liberally construing Plaintiff’s evidence, strictly scrutinizing Defendant’s
evidence, and resolving evidentiary doubts or ambiguities in Plaintiff’s favor.
(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88,
96-97 (McDonald) [appeal from defense summary judgment in a FEHA
discrimination case].)
2 Although Plaintiff considered the position “temp-to-permanent,” it was
a temporary three-month assignment, and he received no promise that the
position would become permanent.
2
One week later, Plaintiff, who identifies as a Christian, emailed Bieder,
stating in part: “ ‘Friday[, March 25,] is a religious holiday (Good Friday) and
I was wondering if it would be okay to request the day off.’ ”
The next day, Bieder and Plaintiff discussed his March 21 email.
During the discussion, Plaintiff also told Bieder that, “ ‘in addition’ to the
religious holiday, he ‘needed the time on Good Friday to get settled in
because of [his] move to California.’ ” Being “a bit taken back [sic] by him
asking for a day” off after only a week on the job, Bieder called Plaintiff an
“ ‘idiot,’ ” a “ ‘lazy ass,’ ” and a “ ‘slacker’ ” and said in “loud and mean tones”
during the conversation: “ ‘I saw your request. . . . It seems kind of
unreasonable, kind of out of place for you to be requesting time off work so
soon. . . . How could you put me in this position? You just started working
here.’ ” Nonetheless, at no time did Bieder say Plaintiff could not take the
day off and, to the contrary, expressly approved his request. Despite having
been given the day off, Plaintiff indicated that he wanted to think more about
whether to take off the day.
The following day, March 23, Bieder emailed Sandra Vedrick,
Defendant’s head of human resources, to report that she (Bieder) had
approved Plaintiff’s request to take off Friday, March 25, “for this religious
day.”
Later that afternoon, a group of Defendant’s employees, which included
Plaintiff, Bieder, James Rolke (Defendant’s Vice President of Research and
Development and the person responsible for termination decisions for the
department in which Plaintiff and Bieder worked), and others, were in
Defendant’s offices talking about taking time off. Speaking loudly enough for
the entire group to hear, in what Plaintiff characterized as sarcasm, Plaintiff
3
said “ ‘Oh, don’t take off for Good Friday though.’ ”3 That evening, Rolke
called Bieder to better understand the context of Plaintiff’s statement, and
she confirmed to him that, in fact, she had already given Plaintiff the day off.
The next day, March 24, (the day before Good Friday), Plaintiff
initiated a conversation with Bieder regarding her comments to him two days
earlier when she approved his request to take the day off. Plaintiff explained
that he “ ‘didn’t appreciate a lot of the things’ ” that Bieder had said about
him in their prior meeting.
Rolke, who was in the next room at the time, overheard Plaintiff and
Bieder. Although what Rolke heard was “muffled,” he described the
exchange as “an argument” between Plaintiff and Bieder. Just as Bieder left
the meeting with Plaintiff, Rolke saw Bieder, who “was practically near
breaking down into tears.” In response to Rolke’s inquiry as to the cause of
Bieder’s apparent upset, Bieder explained to Rolke that “ ‘[Plaintiff] was
badgering me about taking a day off, which he was already given.’ ”
Within minutes, Rolke called Vedrick (in human resources) with Bieder
still present. Rolke instructed Vedrick to have Plaintiff terminated at the
end of that workday. In response to Vedrick’s inquiry as to why, Rolke
explained: “ ‘Because [Plaintiff] had disrespectful behavior’ ”: “One, . . . he
had made a snarky comment about getting a day off, and . . . two, he was
arguing with the supervisor [(Bieder)] within the first week of being hired . . .
to the point of where [she] was practically in tears.” Defendant contacted
3 Rolke testified that what he heard Plaintiff say was, “ ‘Good luck
getting a day off.’ ” Given the appropriate standard on appeal (McDonald,
supra, 45 Cal.4th at pp. 96-97), for purposes of this appeal, we consider
Plaintiff’s recollection of what he said rather than Rolke’s recollection of what
he heard.
4
BioPhase (the staffing agency), and on that evening, Thursday, March 24,
Plaintiff received a telephone call from BioPhase informing him that his
placement with Defendant was terminated due to his “ ‘bad attitude.’ ”
The following Monday, March 28, Plaintiff sent Rolke an email in
which he (Plaintiff) complained about what had happened the prior week
after his “request to take Friday off work.” Throughout the one full page
single-spaced email, Plaintiff did not once mention religion or Good Friday,
instead describing the reason that he asked for the time off as follows: “[M]y
request to take the day off on Friday [was] to help get me set up so I can work
for you better [sic].” Rolke immediately forwarded Plaintiff’s email to
Vedrick, advising and clarifying: “[Plaintiff] wasn’t let go because he wanted
the Friday off. He was let go because he was argumentative and
disrespectful to his supervisor during his first week” of temporary work for
Defendant.
II. PROCEDURAL BACKGROUND
In March 2017, Plaintiff filed a “complaint for religious discrimination
in violation of [the FEHA],” in which he alleged one cause of action for
“religious discrimination” against Defendant and BioPhase.4 (Some
capitalization omitted.) More specifically, Plaintiff claimed that, in violation
of specified provisions of the FEHA and related regulations, Defendant
“decided to terminate Plaintiff due to his actual and perceived religious
beliefs, as retaliation for his opposition to [Bieder’s] religious discrimination
and harassment, and as a preemptive way to deny him the accommodation of
taking Good Friday as a day off from work.”
4 BioPhase moved for and was granted summary judgment in June 2018.
BioPhase is not a party to this appeal.
5
Defendant moved for summary judgment on the basis that Plaintiff
could not produce evidence of pretext or discrimination sufficient to raise a
triable issue of material fact. Plaintiff opposed the motion, Defendant replied
to the opposition, Plaintiff filed a surreply to the reply, and the trial court
entertained oral argument. By written order, the court granted Defendant’s
motion, ruling that Defendant established a nondiscriminatory reason for the
termination of employment—i.e., Plaintiff’s bad attitude—and Plaintiff did
not meet his responsive burden of establishing a triable issue of material fact
as to whether Defendant’s stated reason was pretextual. As part of its order,
the court also ruled that Plaintiff’s cause of action for discrimination based on
religious creed (§ 12940, subd. (l)) did not sufficiently plead a claim for
retaliation (§ 12940, subd. (h)) or harassment (§ 12940, subd. (j)).
The court entered judgment in October 2018, and Plaintiff timely
appealed.
III. DISCUSSION
On appeal, Plaintiff argues: (1) Defendant failed to provide him with a
statutorily required religious accommodation; (2) in response to Defendant’s
evidence of a nondiscriminatory reason for terminating his employment,
Plaintiff met his burden of establishing a triable issue of material fact as to
whether Defendant’s stated reason was pretextual; and (3) Plaintiff
sufficiently pled a claim for retaliation.5 As we explain, Plaintiff has not met
his burden of establishing reversible error: (1) Defendant presented a
legitimate, nondiscriminatory reason for terminating Plaintiff’s employment;
(2) Plaintiff did not meet his responsive burden of presenting evidence, or
inferences from evidence, of a pretext or a discriminatory or retaliatory
5 On appeal, Plaintiff abandoned his claim for harassment.
6
motive or intent for the termination; and (3) even if Plaintiff sufficiently pled
retaliation, the claim does not survive Defendant’s summary judgment
motion.
A. Summary Judgment Under the FEHA
1. General Standards of Appellate Review
Because the trial court’s judgment is presumed correct, the appellant
has the burden of affirmatively establishing reversible error. (Jameson v.
Desta (2018) 5 Cal.5th 594, 609; Claudio v. Regents of the University of
California (2005) 134 Cal.App.4th 224, 252 [appeal from defense summary
judgment in FEHA action (Claudio).)
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
moving and opposition papers[.]” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334 (Guz) [FEHA age discrimination claim]; accord, Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)
A defendant is entitled to a summary judgment on the basis that the
“action has no merit” (Code Civ. Proc., § 437c, subd. (a)) only where the court
is able to determine from the evidence presented 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)). A cause of
action “has no merit” if one or more of the elements of the cause of action
cannot be established or an affirmative defense to the cause of action can be
established as a matter of law. (Code Civ. Proc., § 437c, subd. (o).)
Thus, the moving defendant has the ultimate burden of persuasion6
that one or more elements of the cause of action at issue “cannot be
6 The burden of persuasion, sometimes referred to as the burden of proof,
means the obligation of a party “to establish by evidence a requisite degree of
7
established” or that “there is a complete defense to the cause of action.”
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849,
850, 853-854.) In attempting to achieve this goal, the defendant has the
initial burden of production7 to make a prima facie showing of the
nonexistence of any triable issue of material fact. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at p. 850.) If the defendant meets this burden, then the
burden of production shifts to the plaintiff to establish the existence of a
triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar,
at pp. 850-851.)
2. The FEHA
a. Substantive Law
At issue in this appeal is the FEHA’s prohibition on an employment
practice that discriminates based on an employee’s religious creed, based on a
failure to accommodate a request for an accommodation of an employee’s
religious belief or observance, and based on retaliation against an employee’s
opposition to these specified practices. (§ 12940.8) As applicable to Plaintiff’s
claims, section 12940 includes as unlawful employment practices:
“For an employer, because of the . . . religious creed . . . of
any person, . . . to discharge the person from employment
belief concerning a fact in the mind of the trier of fact or the court.” (Evid.
Code, § 115.)
7 The burden of production means “the obligation of a party to introduce
evidence sufficient to avoid a ruling against him on the issue.” (Evid. Code,
§ 110.)
8 Plaintiff’s cause of action arose out of activities that took place in
March 2016. The portions of the subdivisions of section 12940 at issue in this
appeal have not changed since 2016. (Compare Stats. 2015, ch. 122, § 2, eff.
Jan. 1, 2016, with Stats. 2018, ch. 955, § 2, eff. Jan. 1, 2019.)
8
. . . or to discriminate against the person in . . . or privileges
of employment” (§ 12940, subd. (a));
“For an employer . . . to discharge a person from
employment . . . or to discriminate against a person in . . .
privileges of employment because of a conflict between the
person’s religious belief or observance and any employment
requirement, unless the employer . . . demonstrates that it
has explored any available reasonable alternative means of
accommodating the religious belief or observance, . . . but is
unable to reasonably accommodate the religious belief or
observance without undue hardship . . . . Religious belief or
observance, as used in this section, includes, but is not
limited to, observance of a Sabbath or other religious holy
day or days, reasonable time necessary for travel prior and
subsequent to a religious observance” (§ 12940, subd. (l)(1));
“For an employer . . . to, in addition to the employee
protections provided pursuant to subdivision (h), retaliate
or otherwise discriminate against a person for requesting
accommodation under [section 12940, subdivision (l)],
regardless of whether the request was granted” (§ 12940,
subd. (l)(4)); and
“For any employer . . . to discharge, expel, or otherwise
discriminate against any person because the person has
opposed any practices forbidden under this part or because
the person has filed a complaint, testified, or assisted in
any proceeding under [the FEHA]” (§ 12940, subd. (h)).
For purposes of section 12940, “ ‘[r]eligious creed,’ ‘religion,’ ‘religious
observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief,
observance, and practice, including religious dress and grooming practices.”
(§ 12926, subd. (q).) In addition, “ ‘[r]eligious creed’ includes any traditionally
recognized religion as well as beliefs, observances, or practices, which an
individual sincerely holds and which occupy in his or her life a place of
importance parallel to that of traditionally recognized religions.” (Cal. Code
Regs., tit. 2, § 11060.)
9
Under section 12940, subdivision (l), there are three elements to a
prima facie case for religious creed discrimination based on disparate
treatment:9 “the employee sincerely held a religious belief; the employer was
aware of that belief; and the belief conflicted with an employment
requirement.” (California Fair Employment & Housing Com. v. Gemini
Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011 (Gemini Aluminum).)
In opposing Defendant’s summary judgment motion, Plaintiff argued only
discrimination based on disparate treatment.
By contrast, where the employee’s disparate treatment claim is that the
employer failed to accommodate a religious practice, the employee does not
have to show “ ‘actual knowledge’ of the [employee’s] need for an
accommodation”; the employee “need only show that his need for an
accommodation was a motivating factor in the employer’s decision.” (EEOC
v. Abercrombie & Fitch Stores, Inc. (2015) 575 U.S. 768, __ [135 S.Ct. 2028,
2032] (Abercrombie & Fitch) [under title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq.10].) Thus, to prevail on a failure to accommodate
claim, the employee must show: The employee held a bona fide religious
belief, the practice of which conflicted with an employment duty; the
employee’s religious belief or religious practice was a “motivating factor” in
the employer’s decision; and the employer took adverse action (e.g., discharge
9 “ ‘Disparate treatment’ is intentional discrimination against one or
more persons on prohibited grounds” as opposed to “ ‘disparate impact,’ ”
which focuses on the adverse effect of a “facially neutral” employment
practice. (Guz, supra, 24 Cal.4th at p. 354, fn. 20; see CACI No. 2500,
Directions for Use.)
10 “Because of the similarity between state and federal employment
discrimination laws, California courts look to pertinent federal precedent
when applying our own statutes.” (Guz, supra, 24 Cal.4th at p. 354.)
10
or refusal to accommodate) because of the employee’s inability to fulfill the
job requirement. (Abercrombie & Fitch, at p. __ [pp. 2032-2033].) In short,
“the rule for disparate-treatment claims based on a failure to accommodate a
religious practice is straightforward: An employer may not make an
[employee’s] religious practice, confirmed or otherwise, a factor in
employment decisions.” (Id. at p. __, [p. 2033].)
Finally, “to establish a prima facie case of retaliation under the FEHA,
[the employee] must show (1) he or she 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 (Yanowitz).) These elements of a section 12940, subdivision (h) claim
for retaliation under the FEHA “ ‘are substantially the same as those for
disparate treatment except that instead of having to show that the action was
motivated by animus toward the plaintiff as a member of the protected class,
the plaintiff must show that the motive was retaliatory animus.’ ” (Cornell v.
Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 941-942 (Cornell).)
b. Procedural Law
An employer may move for summary judgment against a
discrimination cause of action with evidence of a legitimate,
nondiscriminatory reason for the adverse employment action. (Guz, supra,24 Cal.4th at p. 357.) Such a reason is one that is unrelated to prohibited
bias and that, if true, would preclude a finding of discrimination. (Id. at
p. 358.) “The employer’s evidence must be sufficient to allow the trier of fact
to conclude that it is more likely than not that one or more legitimate,
nondiscriminatory reasons were the sole basis for the adverse employment
11
action.” (Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1158 (Featherstone).)
By presenting evidence of a legitimate, nondiscriminatory reason for
the adverse employment action, the employer shifts the burden to the
employee to present evidence that the employer’s decision was motivated at
least in part by prohibited discrimination.11 (Guz, supra, 24 Cal.4th at
pp. 353, 357.) The stronger the employer’s showing of a legitimate,
nondiscriminatory reason, the stronger the employee’s evidence must be in
order to create a reasonable inference of a discriminatory motive. (Id. at
p. 362 & fn. 25 [a plaintiff’s “circumstantial evidence of intentional
discrimination, even if fully credited and technically sufficient to establish a
prima facie case, raises, at most, a weak inference of prohibited bias”].)
Although the employee’s evidence submitted in opposition to an employer’s
motion for summary judgment is construed liberally (see fn. 1, ante), it
“ ‘remains subject to careful scrutiny.’ ” (Featherston, supra, 10 Cal.App.5th
at p. 1159.) The employee’s “ ‘subjective beliefs in an employment
discrimination case do not create a genuine issue of fact; nor do
11 This procedure, often referred to as the McDonnell Douglas test or
formula, is derived from the three-stage burden-shifting procedure
established by the United States Supreme Court for use at trial in cases
involving claims (like Plaintiff’s) of employment discrimination based on
disparate treatment. (Guz, supra, 24 Cal.4th at pp. 354, 357, citing
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) At trial, a plaintiff
has the initial burden to establish a prima facie case of employment
discrimination. (Guz, at p. 354.) By contrast, in a summary judgment
motion, the “moving defendant has the initial burden to show that a cause of
action has no merit (Code Civ. Proc., § 437c, subd. (p)(2))” and, therefore, has
“the initial burden to present evidence that its decision was motivated solely
by legitimate, nondiscriminatory reasons.” (Featherstone, supra, 10
Cal.App.5th at p. 1159, fn. 4.)
12
uncorroborated and self-serving declarations’ ”; instead, the employee’s
evidence “must relate to the motivation of the decision makers and prove, by
nonspeculative evidence, ‘an actual causal link between prohibited motivation
and termination.’ ” (Ibid., italics added.)
To show that the employer’s reason for termination is pretextual,12
the employee “ ‘ “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally
find them ‘unworthy of credence,’ ” ’ ” and hence infer ‘ “that the employer did
not act for [the asserted] nondiscriminatory reasons.” ’ ” (Featherstone,
supra, 10 Cal.App.5th at p. 1159.) “[I]f nondiscriminatory, [the employer’s]
true reasons need not necessarily have been wise or correct.” (Guz, supra, 24
Cal.4th at p. 358.) The FEHA “ ‘ “ ‘addresses discrimination.’ . . . “ ‘[It] is not
a shield against harsh treatment at the workplace.’ ” ’ . . . ‘ “[T]he mere fact
that an employee is displeased by an employer’s act or omission does not
elevate that act or omission to the level of a materially adverse employment
action” ’ ” for purposes of the FEHA. (Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 735 (Doe); see Diego, supra, 15
Cal.App.5th at p. 355 [“even if otherwise unfair,” an employment decision not
based on “protected status” under the FEHA is not actionable].) “While the
12 Evidence is sufficient to find pretext if it establishes “ ‘ “that the
employer’s asserted justification is false[.]” ’ ” (Diego v. City of Los Angeles
(2017) 15 Cal.App.5th 338, 351 (Diego); see also McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 [pretextual
evidence establishes “that the presumptively valid reason for the employer’s
action was in fact a coverup”]; O’Regan v. Arbitration Forums, Inc. (7th Cir.
2001) 246 F.3d 975, 983 [“Pretext ‘means a dishonest explanation, a lie rather
than an oddity or an error’ ”].)
13
objective soundness of an employer’s proffered reasons supports their
credibility . . . , the ultimate issue is simply whether the employer acted with
a motive to discriminate illegally. Thus, ‘legitimate’ reasons . . . in this
context are reasons that are facially unrelated to prohibited bias, and which,
if true, would thus preclude a finding of discrimination.” (Guz, at p. 358,
italics & citations omitted.)
Like FEHA discrimination claims, at trial FEHA retaliation claims are
subject to the same McDonnell Douglas burden-shifting framework. (Cornell,
supra, 18 Cal.App.5th at p. 942.) Thus, where the employee is able to
establish a prima facie case, the burden is on the employer to identify “a
legitimate, nonretaliatory reason for the adverse employment action”; and if
the employer meets this standard, then “the burden shifts back to the
employee to prove intentional retaliation.” (Yanowitz, supra, 36 Cal.4th at
p. 1042.) In summary judgment proceedings, FEHA retaliation claims are
also treated the same as FEHA discrimination claims: Where “ ‘ “the
employer presents admissible evidence either that one or more of [the
employee’s] prima facie elements is lacking, or that the adverse employment
action was based on legitimate, nondiscriminatory [or nonretaliatory] factors,
the employer will be entitled to summary judgment unless the [employee]
produces admissible evidence which raises a triable issue of fact material to
the [employer’s] showing.” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th
327, 344 (Arteaga), italics omitted.)
B. Analysis
As we explain, the trial court properly granted summary judgment.
Defendant presented a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment, and Plaintiff did not meet his responsive burden of
14
establishing either a pretext or a discriminatory or retaliatory motive for the
termination.
1. Defendant Presented a Legitimate, Nondiscriminatory Reason
for Terminating Plaintiff’s Employment
For purposes of determining whether an employer’s allegedly
nondiscriminatory reason is “legitimate,” Guz requires that it must be one
that is “facially unrelated to prohibited bias, and which, if true, would thus
preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th at p. 358.)
Here, Defendant presented evidence that, after having been given the
day off, Plaintiff made a “snarky comment” and was “very disrespectful.”
This evidence included two incidents, both of which occurred at a time when
Plaintiff had been employed by Defendant for less than two weeks. First,
Plaintiff made a sarcastic comment to a roomful of other employees, including
Rolke, to the effect that, when it comes to taking time off from work, just
“ ‘don’t take off for Good Friday[.]’ ” Second, the next day, Rolke overheard
what he described as “an argument” between Plaintiff and Bieder, Plaintiff’s
supervisor. Bieder “was practically near breaking down into tears” after
Plaintiff confronted her, “badgering [her] about taking a day off, which he
was already given.’ ” Based on these incidents, Defendant terminated
Plaintiff “for having a ‘bad attitude.’ ”
In addition to the evidence of bad attitude, the uncontradicted evidence
is that Rolke was the person responsible for termination decisions in the
department in which Plaintiff worked, Rolke made the decision to terminate
Plaintiff’s employment, and at the time he made that decision Rolke was
unaware that Plaintiff had requested the day off to observe Good Friday.13
13 In support of its summary judgment motion, Defendant included the
following undisputed material fact, fully supported by cited evidence from
Rolke’s deposition: “At the time Rolke made the decision to terminate
15
This evidence establishes the requisite legitimate, nondiscriminatory reason
for Defendant’s decision to terminate Plaintiff’s employment. The reason is
unrelated to prohibited acts under section 12940 and, if true, would preclude
a finding of discrimination.
Plaintiff argues that “Rolke’s claimed ignorance strains credulity in
light of his many meetings and conversations with Bieder and Vedrick on the
subject.” However, “strain[ing] credulity” is not the standard; Plaintiff was
required to cite to “nonspeculative evidence” that establishes “ ‘an actual
causal link between prohibited motivation and termination.’ ” (Featherstone,
supra, 10 Cal.App.5th at p. 1159.) Plaintiff’s “ ‘subjective beliefs in an
employment discrimination case do not create a genuine issue of fact.’ ”
(Ibid.)
Relying on Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95[retaliation claim, which requires a showing “ ‘that the offensive act would
not have happened but for’ ” the discrimination], Plaintiff further suggests
that, even if Rolke did not have knowledge of the religious origin of Plaintiff’s
request, “it does not excuse [Defendant’s] failure as an employer to provide a
legally mandated accommodation . . . without discrimination or retaliation.”
However, Reeves is distinguishable. As Plaintiff acknowledges, a defense of
“the employer’s ignorance” only applies where “ ‘it extends to all corporate
actors who contributed materially to an adverse employment decision.’ ”
[Plaintiff], he was unaware of the reason (Good Friday) that [Plaintiff] had
requested the day.” In support of his opposition to the motion, Plaintiff’s
response to this material fact was: “Disputed. Rolke was made aware of the
reason [Plaintiff] requested Friday, March 25, 2016, off from work.”
However, the evidence on which Plaintiff relied to dispute this fact—i.e.,
portions of the deposition testimony from Bieder, Rolke and Vedrick—
contains neither direct nor circumstantial evidence (or inferences) to support
Plaintiff’s dispute of Defendant’s proffered material fact.
16
(Quoting Reeves, at p. 109.) That is because “a defendant does not
conclusively negate the element of causation by showing only that some
responsible actors, but not all, were ignorant of the occasion for retaliation”.
(Ibid.) In Reeves, the ultimate decisionmaker “was not the only actor who
materially contributed to plaintiff’s discharge”; to the contrary, she merely
“ratifi[ed]” the adverse employment recommendation made by a person with
knowledge of the plaintiff’s prior complaints about incidents of discrimination
in the workplace. (Id. at p. 110.) Here, on this record, Rolke was the sole
decisionmaker, and he had no knowledge of any religious basis for Plaintiff’s
request for the day off.
Likewise, Plaintiff’s reliance on Gemini Aluminum, supra, 122
Cal.App.4th 1004 is misplaced. There, the plaintiff’s supervisor “knew [the
plaintiff] was a Jehovah’s Witness and wanted the days off to attend his
annual religious convention.” (Id. at p. 1015.) In contrast to our case,
however, in Gemini Aluminum the plaintiff’s supervisor was not only “the
person responsible for taking the [plaintiff’s] request to management,” but he
“was also a member of the management committee which would grant or
deny the request.” (Id. at pp. 1009-1010; see id. at p. 1015.)
In the present case, the only evidence is that Rolke—not Bieder,
Vedrick, or anyone else—“was responsible for termination decisions” in the
department to which Plaintiff had been assigned.14 Had Plaintiff intended
to apply a vicarious liability theory to establish discrimination, at a minimum
14 During cross-examination of Rolke at his deposition, Rolke testified
that, for his department, “All decisions to terminate are made by me.” There
is no evidence either that Bieder or Vedrick told Rolke about the religious
reason for Plaintiff’s requested day off or that Bieder or Vedrick had any role
in Rolke’s decision to terminate Plaintiff’s employment.
17
he would have had to have shown that Bieder was Defendant’s agent for
purposes of terminating Plaintiff’s employment. (See Gemini Aluminum,
supra, 122 Cal.App.4th at p. 1015 [discussion of “agen[cy] for purposes of
vicarious liability for unlawful discrimination”].) In Gemini Aluminum, for
example, the “decision makers were the members of the management
committee,” and the employee’s supervisor who had knowledge of the alleged
discrimination at the time of the adverse employment decision “was a
member of that committee.” (Ibid.) Because Plaintiff has made no similar
showing here, there is no basis on which Plaintiff can claim that, for purposes
of Defendant’s decision to terminate Plaintiff’s employment, Bieder’s (or
Vedrick’s) knowledge either should be imputed to Defendant or is a basis on
which to conclude that Bieder (or Vedrick) had a duty to disclose information
to Rolke regarding the allegedly religious nature of Plaintiff’s request.
2. Plaintiff Did Not Meet His Responsive Burden of Establishing a
Pretext or Discriminatory Motive for the Termination
We now turn to Plaintiff’s presentation to determine whether he met
his responsive burden. Our inquiry is whether there is “evidence supporting
a rational inference that intentional discrimination, on grounds prohibited by
the statute, was the true cause of the employer’s actions.” (Guz, supra, 24
Cal.4th at p. 361, italics omitted.) Thus, as applicable here, we consider
whether Plaintiff has presented sufficient evidence—or “inferences
reasonably deducible from the evidence”15 (Code Civ. Proc., § 437c,
15 Plaintiff may rely on inferences from direct evidence or from
circumstantial evidence. (See Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 232 [“the law generally makes no distinction between
circumstantial and direct evidence[;] . . . both types of evidence can be
persuasive in discrimination cases”]; Desert Palace, Inc. v. Costa (2003) 539
U.S. 90, 99 [Title VII “requires a plaintiff to prove his case . . . using ‘direct or
circumstantial evidence’ ”].)
18
subd. (c))—to allow a factfinder at trial to conclude that Defendant
intentionally discriminated against him based on religious creed in violation
of section 12940.
a. Direct Evidence
According to his opening brief on appeal, Plaintiff contends that the
record contains direct evidence of discrimination, relying on: (1) “Bieder’s
hostility toward Plaintiff’s request [for the day off]”; and (2) “Rolke’s
admission that termination was based on Plaintiff’s protected conduct being
‘disrespectful’ and demonstrating a ‘bad attitude.’ ” (Some initial
capitalization omitted.) We disagree.
With regard to Bieder’s alleged hostility, Plaintiff focuses on Bieder
having “called him ‘lazy,’ a ‘dumbass’ ” and having “told him his request was
‘a sloppy choice.’ ”16 Plaintiff then argues that, because Bieder was “a
“ ‘[D]irect evidence’ means evidence that directly proves a fact, without
an inference or presumption, and which in itself, if true, conclusively
establishes that fact.” (Evid. Code, § 410.) In the context of a FEHA discrimination
case, “[d]irect evidence is evidence which, if believed, proves the fact of
discriminatory animus without inference or presumption. Comments
demonstrating discriminatory animus may be found to be direct evidence if
there is evidence of a causal relationship between the comments and the
adverse job action at issue.” (DeJung v. Superior Court (2008) 169
Cal.App.4th 533, 550 (DeJung), discussed in the text, post.)
The term “circumstantial evidence” emphasizes the effect of the
evidence—i.e., the necessity of drawing inferences from it. “An inference is a
deduction of fact that may logically and reasonably be drawn from another
fact or group of facts found or otherwise established in the action.” (Evid.
Code, § 600, subd. (b).)
16 In the next sentence of his brief, Plaintiff tells us that there is direct
evidence that “Bieder also told Rolke that she believed Plaintiff was being
untruthful about the religious purpose of his request.” (Italics added.)
Because Plaintiff failed to provide a record reference for this assertion, we
disregard it. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014,
19
supervisor who was involved in the adverse employment action,” this direct
evidence establishes that “unlawful discrimination played a role in the
decision.” The problem with Plaintiff’s approach is that the record does not
support the premise for Plaintiff’s argument—namely, that Bieder “was
involved in the adverse employment action.” To the contrary, as we
explained at part III.B.1., ante, the record establishes that only Rolke made
the decision to terminate Plaintiff’s employment. (See fn. 14 and related text,
ante.) In addition, despite using language that Plaintiff finds offensive,
Bieder approved Plaintiff’s request in its entirety. While Bieder’s comments
may evidence rude behavior or a personal animosity, neither is evidence of
religious discrimination in violation of the FEHA. (See Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 295 (Lyle) [“the FEHA
is ‘not a “civility code” ’ ”]17; Doe, supra, 43 Cal.App.5th at p. 735 [the FEHA
1079; Cal. Rules of Court, rule 8.204(a)(1)(C).) In any event, based on our
own review of the record, we are satisfied that, for purposes of opposing
Defendant’s motion, Plaintiff was unaware of such evidence.
First, in his response to Defendant’s undisputed fact No. 29, Plaintiff
agreed that, in discovery responses, he did not identify Rolke as “a person
having ‘knowledge’ of ‘any ADVERSE EMPLOYMENT ACTIONS’ taken
against [Plaintiff] which ‘were discriminatory.’ ”
Additionally, in disputing Defendant’s undisputed fact No. 35, in part
Plaintiff told the trial court: “[Rolke] based his decision [to terminate
Plaintiff] on three conversations he had with Bieder, one Wednesday
morning, another Wednesday evening, and the third occurring Thursday
morning. Rolke also convened on a phone call with [Vedrick] and Bieder
regarding the decision to terminate.” In support of his response, Plaintiff
cited portions of deposition testimony from Rolke, Bieder, and Vedrick. None
of that testimony contains evidence, or any inference from the testimony, that
Bieder told Rolke that Plaintiff’s request for a day off had a “religious
purpose”—as Plaintiff tells us in his appellate brief.
17 In Lyle, our Supreme Court recognized that “the use of sexually coarse
and vulgar language in the workplace can . . . constitute harassment because
20
“is not a shield against harsh treatment at the workplace”]; Slatkin v.
University of Redlands (2001) 88 Cal.App.4th 1147, 1157 (Slatkin) [where a
personal grudge constitutes a “legitimate, nondiscriminatory reason” for an
adverse employment decision, the plaintiff does not have a claim for
discrimination]; Guz, supra, 24 Cal.4th at p. 358 [“if nondiscriminatory, [the
employer]’s true reasons need not necessarily have been wise or correct”].)
Plaintiff’s reliance on DeJung, supra, 169 Cal.App.4th 533 is misplaced.
In DeJung, a former part-time court commissioner brought a FEHA age
discrimination case against the Sonoma County Superior Court. (Id. at
p. 538.) The court’s executive committee made the decision to appoint a
fulltime commissioner and established a screening panel and an interview
panel for the recruitment process. (Id. at p. 541.) During the time at which
the executive committee decided not to rehire the plaintiff on a part-time
basis and the time at which the court offered the fulltime position to a
younger man, the court’s presiding judge—who was also chair of the
executive committee—told the plaintiff and others that the court was looking
to hire someone younger than the plaintiff.18 (Id. at pp. 541-542.) In
support of its motion for summary judgment, the defendant court argued that
the presiding judge’s comments, “if made, did not taint its decisionmaking
of sex . . . depending on the circumstances.” (Lyle, supra, 38 Cal.4th at
p. 295, italics added.) We need not consider whether Bieder’s actions might
constitute harassment because of religion, since Plaintiff here expressly
withdrew his claim for harassment.
18 At the time of the hiring decision, 12 candidates, including the plaintiff,
had been interviewed. (DeJung, supra, 169 Cal.App.4th at p. 541.) The
plaintiff was 64 years old, the other applicants were between the ages of 37
and 62, and the applicant who was offered the position was 43 years old. (Id.
at pp. 541, 542, & fn. 4.)
21
process because the hiring decision involved a multi-level process conducted
by multiple individuals.” (Id. at pp. 550-551.) The Court of Appeal rejected
this argument, ruling that, although “[the plaintiff] need not demonstrate
that every individual who participated in the failure to hire him shared
discriminatory animus in order to defeat a summary judgment motion, . . .
[by] showing that a significant participant in an employment decision
exhibited discriminatory animus is enough to raise an inference that the
employment decision itself was discriminatory.” (Id. at p. 551, italics added.)
Very simply, in DeJung, the person who allegedly “exhibited discriminatory
animus” was the defendant court’s presiding judge who also chaired the
court’s executive committee (id. at pp. 541-542); whereas, in contrast, in the
present case, there is no evidence that Bieder had any role in the decision to
terminate Plaintiff’s employment.
For the foregoing reasons, Plaintiff did not meet his responsive burden
of producing direct evidence to establish the existence of a triable issue of
material fact as to whether Defendant intentionally discriminated against
him based on religious creed in violation of section 12940. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.)
b. Circumstantial Evidence
Plaintiff argues that certain circumstantial evidence supports
an inference of Defendant’s unlawful motivation or pretext. An inference is
“a deduction of fact that may logically and reasonably be drawn from another
fact or group of facts found or otherwise established in the action.” (Evid.
Code, § 600, subd. (b).) As applicable here, “[s]peculation . . . is not evidence”
(Aguilar, supra, 25 Cal.4th at p. 864), and an appellant opposing summary
judgment “cannot rely on ‘speculation, conjecture, imagination, or
guesswork’ ” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th
22411, 418). Moreover, just as at trial, on summary judgment the inferences a
plaintiff relies on must satisfy the “more likely than not” evidentiary
standard. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.)
Here, Plaintiff relies on the following circumstantial evidence to
support inferences of discrimination: (1) Defendant’s “vague and subjective
‘bad attitude’ rationale”; (2) Defendant’s “biased and defective fact finding”;
and (3) “ the close timing between [Plaintiff’s] protected conduct and [his]
termination.”19 As we explain, Plaintiff did not meet his responsive burden.
19 In response to our request for supplemental briefing from the parties,
Plaintiff argues that we should infer that Rolke knew Plaintiff had requested
the day off for religious reasons from his statement to a group of employees,
including Rolke, one day before the termination, “ ‘Oh, don’t take off for Good
Friday though.’ ” (Italics added.) We reject Plaintiff’s contention.
First, Plaintiff did not argue this inference in his appellate briefing.
Because the judgment is presumed correct (Claudio, supra, 134 Cal.App.4th
at p. 252), our review on appeal “ ‘is limited to issues which have been
adequately raised and supported in [the appellant’s] brief.’ ” (Palm Springs
Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 279,
fn. 4; accord, Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1519; Claudio,
at p. 230.) Any other procedure would be “manifestly unjust to the opposing
parties, unfair to the trial court, and contrary to judicial economy.” (North
Coast Bus. Park v. Nielsen Constr. Co. (1993) 17 Cal.App.4th 22, 29.)
Moreover, in his discovery responses, which formed the basis of an
undisputed material fact in the summary judgment proceedings, Plaintiff
“did not identify Rolke as a person having ‘knowledge’ of ‘any ADVERSE
EMPLOYMENT ACTIONS’ taken against [Plaintiff] which ‘were
discriminatory.’ ” Having taken this position, Plaintiff cannot now argue
that, from the evidence that Rolke thought Plaintiff’s statement was “snarky”
and “disrespectful,” we should infer that Rolke—and, thus, Defendant—had a
discriminatory motive when terminating Plaintiff’s employment. Had
Plaintiff in fact relied on the inference from this evidence, he should have
included it with his summary judgment opposition in the trial court and
attempted to amend his discovery responses to identify Rolke as someone
with knowledge of the allegedly discriminatory termination of employment.
23
First, Plaintiff argues that, because Defendant’s expressed basis for the
termination (i.e., Plaintiff’s “bad attitude”) was “ ‘excessively subjective and
vague,’ ” he has not been given a “ ‘reasonable opportunity to rebut’ ”
Defendant’s showing of a legitimate, nondiscriminatory reason for
terminating Plaintiff’s employment. (Quoting Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 75, internal quotation
marks omitted.) Initially, by concluding that Defendant met its initial
burden in presenting a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment (see pt. III.B.1., ante), we have already determined
that Plaintiff’s “bad attitude”—i.e., Defendant’s stated reason for
termination—is neither excessively subjective nor vague. In any event, since
Plaintiff’s premise is faulty, his conclusion necessarily fails. Here, Defendant
has been consistent and clear: The two bases for Rolke concluding that
Plaintiff demonstrated a bad attitude are (1) Plaintiff’s sarcastic comment in
a room of other employees, and (2) Plaintiff’s argument with his direct
supervisor (Bieder) that left her practically in tears. Such behavior by
Plaintiff does show a bad attitude, and describing it as such is neither
excessively subjective nor vague.
Plaintiff next suggests that, where an employer conducts an
investigation or otherwise assesses potential employee misconduct, a
“defective fact finding” investigation “may itself support an inference of
discrimination.” More specifically, Plaintiff argues that, in summary
judgment proceedings, the burden does not shift to the employee to establish
pretext “ ‘until the employer shows that the procedure by which the employee
was terminated was validly and fairly devised and administered to serve a
legitimate business purpose.’ ” (Quoting Gemini Aluminum, supra, 122
Cal.App.4th at p. 1022.) Again, we have already concluded that Defendant
24
made a sufficient showing to shift the burden to Plaintiff to establish pretext.
(See pt. III.B.1., ante.) In any event, Plaintiff cites no authority that required
Defendant to conduct an investigation, and our independent research has not
disclosed any.
Finally, Plaintiff argues that the “ ‘close temporal proximity’ ” between
his argument with Bieder (over what he characterizes as his “objection to
[her] abusive response to his original request”) and the termination of his
employment later that same day “establishes an inference that Plaintiff’s
termination was caused by his protected statements to Bieder.” (Quoting
Hodgens v. General Dynamics Corp. (1st Cir. 1998) 144 F.3d 151, 168.) Yet
again, because here “the employer has offered evidence of a legitimate,
nondiscriminatory reason for the termination” (see pt. III.B.1., ante),
“temporal proximity alone is not sufficient to raise a triable issue as to
pretext.” (Arteaga, supra, 163 Cal.App.4th at p. 353; accord, Light v.
Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [“a mere
temporal relationship between an employee’s protected activity and the
adverse employment action, while sufficient for the plaintiff’s prima facie
case, cannot create a triable issue of fact if the employer offers a legitimate,
nonretaliatory reason for the adverse action”].) In any event, as we explained
ante, although “Bieder’s abusive response to [Plaintiff’s] original request”
may evidence rude behavior or a personal animosity, it does not evidence
religious discrimination in violation of the FEHA. (See Lyle, supra, 38
Cal.4th at p. 295 [“the FEHA is ‘not a “civility code” ’ ”]; Doe, supra, 43
Cal.App.5th at p. 735 [the FEHA does not preclude “harsh treatment at the
workplace”]; Slatkin, supra, 88 Cal.App.4th 1147, 1157 [a personal grudge
will not support a claim for discrimination]; Guz, supra, 24 Cal.4th at p. 358
25
[the employer’s “true reasons need not necessarily have been wise or
correct”]; see pt. III.B.2.a., ante.)
For the foregoing reasons, Plaintiff has not established reversible error.
With regard to the issue whether Defendant intentionally discriminated
against him based on religious creed in violation of section 12940,
subdivision (l)(1), Plaintiff did not meet his responsive burden of producing
circumstantial evidence to establish the existence of a triable issue of
material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25
Cal.4th at pp. 850-851.) To the extent Plaintiff contends that the trial court
erred in granting summary judgment as to his claim for failure to
accommodate (§ 12940, subd. (l)(4)), for all of the reasons that Plaintiff did
not establish reversible error as to the claim of discrimination (§ 12940,
subd. (l)(1)), summary judgment was also appropriate as to a claim for failure
to accommodate (§ 12940, subd. (l)(4)).20
In short, Plaintiff’s “ ‘suspicions of improper motives . . . primarily
based on conjecture and speculation’ are not sufficient to raise a triable issue
of fact to withstand summary judgment.” (Kerr v. Rose (1990) 216 Cal.App.3d
1551, 1564 [wrongful termination].)
20 At oral argument, Plaintiff’s counsel suggested that, for purposes of a
failure to accommodate (§ 12940,subd. (l)(4)), the mere act of requesting an
accommodation is sufficient to establish protected conduct. We disagree.
As we explained at part III.A.2.a. ante, to establish a disparate treatment
claim based on a failure to accommodate a religious practice, Plaintiff was
required to show that Rolke “ma[d]e [Plaintiff’s] religious practice, confirmed
or otherwise, a factor in [terminating him].” (Abercrombie & Fitch, supra,575 U.S. at p. __ [135 S.Ct. at p. 2033], italics added.)
26
3. To the Extent Plaintiff Pled a Claim for Retaliation,
the Grant of Summary Judgment Applies to It,
and Plaintiff Has Not Established Reversible Error
The trial court granted Defendant’s summary judgment motion, which
Defendant directed to the complaint, not to any specific claim. In explaining
its reasoning, in part the court ruled that, in Plaintiff’s “single cause of action
for discrimination based upon religion[,] Plaintiff did not plead a cause of
action for retaliation . . . under FEHA, Gov. Code, § 12940[, subd. ](h).”
On appeal, the parties disagree as to whether the complaint contains
sufficient allegations to support a claim for retaliation (§ 12940, subd. (h)), in
addition to a claim for discrimination or failure to accommodate (§ 12940,
subd. (l)). We will assume without deciding that the complaint adequately
alleges a claim for retaliation.21 Nonetheless, as we explain, Plaintiff has
not met his burden of establishing reversible error.
In an appeal from a summary judgment, “we review ‘the ruling, not the
rationale’ ”; thus, we may affirm on any basis supported by the record and the
law. (Skillin v. Rady Children’s Hospital – San Diego (2017) 18 Cal.App.5th
35, 43.) Applying this standard, we conclude that the trial court correctly
ruled that Defendant was entitled to summary judgment on the complaint—
including the (assumed) claim for retaliation.
One of the elements of a prima facie case of retaliation under the FEHA
is “a causal link . . . between the [employee’s] protected activity and the
employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.) To do this, “ ‘the
plaintiff must show that the motive was retaliatory animus.’ ” (Cornell,
supra, 18 Cal.App.5th at pp. 941-942.) “Like FEHA discrimination claims,
21 Proceeding with this assumption, we deny as unnecessary Plaintiff’s
request to amend the complaint.
27
FEHA retaliation claims are subject to the McDonnell Douglas burden-
shifting framework.” (Id. at p. 942.)
As we explained at part III.B.2., ante, because neither direct nor
circumstantial evidence supports a finding that Rolke knew of the religious
nature of his request for the day off, Plaintiff did not meet his responsive
burden of producing evidence to establish the existence of a triable issue of
material fact as to whether Defendant intentionally discriminated against
him. For the same reason, Plaintiff has not met, and cannot meet, his
responsive burden of producing evidence that Defendant’s motive in
terminating Plaintiff’s employment was retaliatory animus. The decision to
terminate the employment was a decision made solely by Rolke. (See fn. 14,
ante.)
Thus, Plaintiff did not meet his responsive burden of producing
evidence to establish the existence of a triable issue of material fact as to
whether Defendant intentionally retaliated against him based on religious
creed in violation of section 12940. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at pp. 850-851.)
28
IV. DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
AARON, Acting P. J.
GUERRERO, J.
29