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In Demps, the trial court granted summary judgment in favor of the defendant employer against the plaintiff's allegations of discrimination.
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A112815.
April 9, 2007. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B.
Appeal from the Superior Court of the City and County of San Francisco, No. CGC04434590, Ronald Evans Quidachay, Judge.
Law Offices of Curtis G. Oler and Curtis G. Oler for Plaintiff and Appellant.
Cholakian Associates, Kevin K. Cholakian, Colin H. Jewell, David J. Streza; Walsworth, Franklin, Bevins McCall, Randall J. Lee and Laurie E. Sherwood for Defendants and Respondents.
OPINION
Paraphrasing Alexander Pope, a court "should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday." (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) vol. I, p. 340.)
We write today to "own" that the procedure we approved in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 [ 267 Cal.Rptr. 819] ( Biljac) was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that "`I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.'" ( Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Court cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge's failure to rule on properly presented objections results in their being waived, the effect of which is that the objected-to evidence is in the record for purposes of appellate review.
The trial judge here expressly stated that he was relying on Biljac, and went on to grant summary judgment for defendants San Francisco Housing Authority (Housing Authority) and Michael Roetzer, its administrator. We must thus determine, on our independent review, whether that summary judgment was correct in light of all the evidence in the record. We conclude that it was, and we affirm.
I. BACKGROUND
A. Demps and His Employment
Plaintiff Sherman Demps, Jr., is an African-American man, born in 1948; he was 57 years old when the events leading to this lawsuit took place. Demps has an associate of arts degree from San Francisco City College, following which he attended two universities; he is 12 units short of a degree in hotel and restaurant management.
Following honorable service in the military, Demps had a broad employment background, working for United Airlines, various restaurant chains, and security firms. In 1994 Demps began employment with the Housing Authority as a security officer. In April 1996 he became a resident custodian at 1880 Pine Street (1880 Pine), a housing complex owned and operated by the Housing Authority, whose occupants are senior citizens and disabled people. Demps remained in that position until the fall of 2002, when he was terminated.
The Housing Authority entered into a memorandum of understanding with Service Employees International Union, Local 1877, of which Demps was a member in good standing. Apparently this memorandum governed the relationship between the Housing Authority and the union members, including custodians, but no issues are presented in connection with it.
The full range of Demps's duties at 1880 Pine were described in a job description introduced by him, included among which was that he "move and set up furniture and equipment." As distilled in the declaration of Ignatius Leonor, the Housing Authority district director for district 3, Demps was responsible for performing a full range of custodial tasks, including picking up papers, garbage, and other rubbish, washing and cleaning stairways and hallways, inspecting the building and grounds for vandalism and unsafe or unhealthy conditions, and reporting evidence of problems with Housing Authority property or equipment.
As a condition of his employment as resident custodian, Demps was required to occupy a unit at 1880 Pine, though he was not under any lease. Under the memorandum of understanding, he was required to be available to the Housing Authority five days a week, 24 hours per day. He was also required to use Housing Authority property only for authorized activities in connection with his official duties. And Demps admitted — it was undisputed, he responded — that as "a resident custodian [he] occupied a position of trust because he had direct contact with disabled and elderly residents and had access to their occupied residences."
Demps's declaration in opposition to the motion for summary judgment stated that he was "never informed by [his] supervisor, Ignatius Leonor, or anyone else at any time that [he] was not performing [his] job in a competent manner." No directly contrary evidence was introduced by the Housing Authority, nor did it take issue with Demps's statement that he never received a work performance evaluation. In short, Demps's employment history at the Housing Authority until 2002 was generally uneventful — with the lone, but significant, exception of his relationship with Linda Bray, who was apparently Demps's antagonist from the beginning and would become the protagonist in the events which would ultimately lead to his termination:
Bray was a Caucasian woman in her fifties, and had been a tenant at 1880 Pine before Demps began his employment there. And to put it mildly, she and Demps did not get along. Demps's declaration describes their relationship as follows: "11. Almost from the very beginning of my employment as Resident Custodian at the 1880 Pine Street address, I began experiencing extraordinary nonstop harassment and extreme abuse by Linda Bray, a white female tenant there. That egregious harassment continued throughout the full term of my employment with the full knowledge of and aided, abetted and encouraged by defendants Michael Roetzer and the San Francisco Housing Authority, [¶] 12. Linda Bray's abhorrent abuse over the several years of my employment, included but was not limited to false and malicious complaints to my supervisors relating to my work performance and conduct, constant harassment of persons visiting my unit, abusive verbal and physical attacks upon my roommate, continuously confronting me in a hostile, provocative manner, constantly addressing and referring to me as a `pimp,' `drug dealer' and `pimping drug dealer,' continuously filing false police reports against me, necessitating my filing a civil action for defamation against her. [¶] Linda Bray also constantly without cause confronted tenants in the building in a hostile threatening manner with a variety of baseless accusations." Demps's declaration attached copies of documents reflecting what he called "the endless stream of harassment conduct by Linda Bray," and went on to state that he had "copies of 100 or more documents including false police reports, and vexatious civil actions reflecting the abuses of Linda Bray against me and others."
There was no declaration from Bray. However, Michael Roetzer and the Housing Authority's (when referred to collectively, defendants) reply to Demps's statement of material facts, citing various portions of Demps's deposition and his response to defendants' own separate statement, responded as follows: "With respect to Linda Bray, at no time did Demps make a complaint about an unlawful employment practice under the FEHA. Nor did he ever complain about Linda Bray to Michael Roetzer. [Citation.] Demps conceded that Linda Bray's comments were racially neutral. [Citation.] . . . He has provided no evidence that Linda Bray harassed people based on their age, race, sex, or any other protected classification. Most notably, Demps believes that Linda Bray's conduct was motivated not by his status as a member of any protected class, but was the result of a personal animus based on Demps's support of another tenant in a court matter involving Ms. Bray. [Citation.] Finally, Demps explicitly stated that he was never sexually harassed by Ms. Bray. [Citation.]"
Beyond the rather conclusory recitations quoted above, the actual facts involving Bray can be gleaned only from certain of the documentary evidence introduced by Demps himself. These exhibits included numerous police incident reports (most of which were complaints by Bray and one a complaint against Bray) and an order from the San Francisco Superior Court on a petition for injunction prohibiting harassment brought by Bray, but which resulted in an injunction against her.
Demps's documentary evidence also included four letters he wrote, on April 13, 1999, an unspecified date in January 2000, August 7, 2000, and May 31, 2001. The first of these letters, to Housing Authority Property Manager Henry Khan, responded to the charge by Bray that Demps called her a "bitch." And the third letter confirmed that Demps had been advised by Khan that "there was nothing he could do" about Bray. Interestingly, and as particularly pertinent to the issue here, in that third letter Demps referred to "someone complain [sic] about me that I was bringing in homeless people to work for me." This, as noted, was in August 2000.
However bad the relationship between Demps and Bray had been, it sunk to its nadir in July 2002 when Bray accused Demps of attempting to kill her. The details of the alleged crime are nowhere in the record, nor are the details of the actual proceedings filed. What is in the record is Demps's declaration testimony that at some point "the District Attorney's office subsequently terminated that unfounded criminal case against [him] and dismissed the case."
The criminal charge of attempted murder caused the Housing Authority to investigate, in the course of which it learned information that would lead to the termination of Demps's employment. What precisely occurred in connection with this investigation is, like so much of the story here, not in the record. Whatever it was, something occurred which generated a 10-page handwritten letter from Demps dated September 23, 2002. The letter was addressed to District Director Leonor, and its subjects were "Ms. Linda Bray, # 606 [and] Johnny Celestine." What that letter revealed was described by Leonor in his declaration in support of defendants' motion: "Demps admitted he paid neighborhood panhandler and known drug-user Johnny Celestine to move furniture out of the hallways at the senior and disabled housing complex located at 1880 Pine Street once a month or every two or three months." Further, Leonor's declaration stated that Demps "also acknowledged that [Leonor] had previously warned him that hiring others to perform his work in the building would result in his termination."
What occurred next is again not in the record, but as best we can determine from Demps's evidence, Leonor prepared a memorandum dated October 4, 2002, which, according to Demps, proposed "the termination of [his] employment." The memorandum was not introduced below, and what we know of it is yet again from Demps. According to him, the memorandum proposed the termination of his employment because he was "guilty of `acts of gross misconduct; unauthorized use of Housing Authority property; dishonesty, unsatisfactory job performance; conduct that reflect [ sic] negatively on the Housing Authority; and non-compliance with Authority Safety Standards.'"
Elaborating on those charges, and at the same time taking issue with them, Demps's declaration went on: "said blatantly false and fabricated accusations were charged as: a. Failure to Perform Assigned Work and Unauthorized Use of Housing Authority Property. In pertinent part, said charge falsely states that I hired Johnny Celestine, a panhandler to perform my job duties at 1880 Pine Street, three nights per week for the past two years, and that I gave him $15.00 to $30.00 each night to sweep and mop floors, set up tables for meetings, and clean stairwells. Such charges are completely false and unsupported as already referred to in paragraphs 17, 18 and 19 above, [¶] b. Gross Negligence and Non-Compliance With Authority Safety Standards. This charge knowingly and falsely presents the misleading and [sic] statement that I allowed a known drug user, Johnny Celestine, access to said premises when in fact my supervisor was always cognizant of the presence of Celestine in the neighborhood even before I became employed at 1880 Pine. Celestine was known to most of the tenants who trusted him and who often had him do odd jobs for them, including Linda Bray. Celestine never harmed anyone while providing needed services to tenants at their request, [¶] Thusly, the charge here of Gross Negligence and Non-Compliance with Authority Safety Standards is fabricated and ludicrous, [¶] c. Conduct that Reflects Negatively on the Housing Authority. The sole basis for this equally false and ludicrous charge is that at some time and place I addressed Linda Bray as a `bitch' to her face and also referred to her as same when speaking to Celestine. [¶] Such charge is absolutely false and unsupported. I have at no time addressed or referred to Linda Bray or any other tenant as a `bitch.' [¶] d. Making False Statements During An Official Investigation. The charge that I made false statements during an investigation is absolutely false and as ludicrous as the above fabricated charges against me. At no time have I ever made a false statement to the Housing Authority or anyone else concerning my employment by the Housing Authority. Defendant presents no credible evidence to support their scurrilous charges which have been simply designed to justify the termination of my employment."
According to a November 18, 2002 letter from administrator Roetzer, a Skelly meeting was scheduled for November 15, 2002. Demps apparently chose not to attend, but had Cesar Alvarado, his union representative, appear on his behalf. Roetzer's letter also memorialized what occurred: "At the meeting, Mr. Alvarado did not provide any additional information. He did not dispute that you had hired Johnny Celestine to perform work at the 1880 Pine Street building, your assigned work site, or that you referred to a resident in derogatory terms. In addition, I reviewed the evidence supporting your termination. Based on my review of the relevant materials and your failure to provide any additional information, I am upholding the October 17, 2002, decision to terminate your employment with the Housing Authority. You were sent your final paychecks with the October 17 letter."
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [ 124 Cal.Rptr. 14, 539 P.2d 774].
B. The Proceedings Below
On September 10, 2004, Demps filed a complaint for "Declaratory Judgment, Injunctive Relief and Damages" alleging four causes of action: (1) race, color, and national origin discrimination; (2) mental disability discrimination; (3) age discrimination; and (4) retaliation. The complaint named as defendants the City and County of San Francisco (the City), the Housing Authority, and Roetzer.
On October 15, 2004, the City filed its answer, and on November 12, 2004, the Housing Authority and Roetzer their answer. Within months the City was dismissed, and the case proceeded against the Housing Authority and Roetzer.
On June 28, 2005, the Housing Authority and Roetzer moved for summary judgment or summary adjudication. The motion was accompanied by declarations of Roetzer, Donna Martin, Housing Authority general counsel, and district director Leonor. Leonor's declaration authenticated three documents attached to the separate statement, including Demps's September 23, 2002 letter.
The basis of the motion was simple and straightforward. As to the first three causes of action, it argued that Demps's position as resident custodian required him to perform certain jobs; that he was required to use Housing Authority property only for authorized activities in connection with his official duties; that while investigating the criminal charge against Demps, the Housing Authority learned that he had paid Celestine to assist him in his duties; that Demps had acknowledged that he had been warned that hiring others to assist him could result in his termination; and that "[a]s a result of Demps's misconduct and failure to perform his job duties, the Housing Authority terminated his employment in correspondence executed by . . . Roetzer." Thus, the motion contended that Demps could not establish a prima facie case for discrimination because he could not prove that he was competently performing his job. As to the fourth cause of action for retaliation, the motion argued that Demps could not establish that he engaged in a protected activity. The motion also contended that Roetzer could not be individually liable for discrimination or retaliation.
A footnote in the points and authorities contended that "[e]ven if Demps were able to establish the elements of his prima facie case, the Housing Authority has set forth a legitimate nondiscriminatory reason for Demps's termination."
On August 29, 2005, Demps filed his opposition. It consisted of a memorandum of points and authorities, his response to defendants' separate statement, his own separate statement of additional undisputed evidence, and eight declarations — of Demps, Kenneth Block, Clarence Block, Jeff St. Clair, Klara Eydinzon, Helen Miranda, Louise Hines, and Curtis Oler. Demps did not file any objections to any of the evidence submitted on behalf of defendants.
St. Clair, Eydinzon, Miranda, and Hines were tenants at 1880 Pine (or in Miranda's case, a relative of a tenant), and the essence of their testimony was that Demps was friendly, that he did a good job, and that they never saw anyone else working there. Kenneth Block was an African-American man who had been employed by the Housing Authority as a resident custodian until he was terminated in 2004, and had filed suit against the Housing Authority and Roetzer. Clarence Block, also African-American, had been employed as a paralegal from 1998 until he was "forced . . . to leave [his] employment." Oler was Demps's attorney, and his declaration attached portions of Demps's deposition.
On September 7, 2005, the Housing Authority and Roetzer filed their reply papers. They included defendants' response to plaintiff's response to the separate statement, their response to plaintiff's separate statement of undisputed facts, a reply brief, a declaration of Christi Gotvald authenticating pages of Demps's deposition, and 11 pages of objections to Demps's evidence. The reply brief reiterated the arguments that Demps failed to demonstrate a prima facie case because he could not show competent performance of his job. Despite that the motion did not argue the point, the reply also argued that Demps failed to produce any evidence to support discrimination based on age, disability, or race.
C. The Summary Judgment Hearing
The motion came on for hearing on September 12, 2005. After setting the stage for the motion, the court early on indicated its "leaning that the City shifted the burden in this instance and then the opposing side failed to present any competent evidence for the Court to find triable issues of material fact as to any of these particular causes of action. In particular, plaintiff failed to show any end [ sic: animus] on the part of Mr. Roetzer and/or the Housing Authority. [¶] And the other point that I would make specifically regarding Mr. Roetzer is that he as an individual could not be held liable for these particular acts or alleged acts."
The court proceeded to hear argument on various issues, including whether there was any "animus . . . related to [Demps's] race, his age, or his mental disability." As counsel for the Housing Authority distilled its position at one point, "So, your Honor, there was — there was obviously a good-faith reason for the termination. It was the result of his placing our senior and disabled population in harm's way, failure to perform his job. Additionally, as we have also discussed, there was simply no evidence of any other type of animus as you, yourself, have discussed related to his race, his age or his mental disabilities, [¶] And finally, with plaintiff's contention that he was subjected to ongoing harassment by Linda Bray, as you yourself pointed out, she is a tenant and not a sole employee and, again, the harassment was not based on any protected classification under the FEHA."
As noted above, the Housing Authority and Roetzer filed objections to some of Demps's evidence. Apparently heeding the strong recommendation from the authors of a leading practical treatise, at the conclusion of the hearing counsel for the Housing Authority asked the court "that rulings be made on the objections." (See Weil Brown, Cal. Practice Guide: Civil Practice Before Trial (The Rutter Group 2006) ¶ 10:301.5, p. 10-116.) The trial court responded as follows: "Okay. The Court in this instance here follows Biljac. Until we are told otherwise by the First District, we are still following Biljac, okay? . . . [¶] So the Court is following Biljac and is only considering the relevant and pertinent evidence. Thank you, counsel."
The authors give the following advice: " 10:301.5 PRACTICE POINTER: Be sure there is a reporter present at the law and motion hearing, and politely ask the court for an on-the-record ruling oh each objection. Otherwise, your failure to press the matter may be treated as a waiver of the objection (see above)." The authors go as far as to quote Justice Vogel's observation in her dissenting opinion in Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 714 [ 27 Cal.Rptr.3d 318], that counsel "should yell and scream and stamp his feet, or do whatever else it takes to force the trial court to rule on those objections." (Weil Brown, Cal. Practice Guide: Civil Practice Before Trial, supra, ¶ 10:301.5, p. 10-116.)
No rulings on the objections were ever made, and on September 15, 2005, the court entered its order granting summary judgment. Addressing Demps's claims on a cause-of-action-by-cause-of-action basis, the trial court held as follows: as to Roetzer individually, that Demps was unable to establish individual liability as a matter of law; as to the Housing Authority, Demps could not establish that he was competently performing his job at the time of termination and thus could not establish an essential element of his first, second, and third causes of action; and as to the fourth cause of action for retaliation, that Demps could not establish that he engaged in a protected activity.
On October 31, 2005, the court entered judgment for defendants, from which Demps filed a timely notice of appeal.
II. DISCUSSION
A. The Trial Court Erred in Proceeding According to Biljac
As quoted above, in responding to counsel's express request for a "ruling on the objections," the trial court stated it was "following Biljac and is only considering the relevant and pertinent evidence." Biljac was, as noted, our 1990 opinion which involved an appeal from a grant of summary judgment for banks and bank trade associations on a complaint alleging violations of the Cartwright Act and the unfair competition laws. We affirmed. Doing so, we first addressed an issue involving the evidentiary objections filed by the plaintiffs and the manner in which the trial court dealt with them. As we described it, "Plaintiffs filed voluminous evidentiary objections and a request that the court give written rulings on all objections. [The trial judge] declined, however, explaining that while he found merit to some of the objections on both sides and would be disregarding all inadmissible or incompetent evidence in ruling, he saw little purpose in rendering formal rulings. Plaintiffs contend that this was reversible error. We disagree. [¶] Nothing in the statute or rules requires a written or other formal ruling for the record, and the single case which plaintiffs cite for that proposition has no bearing on it. [¶] Plaintiffs urge that express rulings are needed for appellate review so that they, and we, can know what evidence was considered. However, there is no use in such a procedure. We review summary judgments de novo [citation], and the parties remain free to press their admissibility arguments on appeal, the same as they did in the trial court. Also, being able to identify particular flaws in the lower court's reasoning has no value because, as appellants themselves note, summary judgment must be upheld if correct on any ground — regardless of wrong `reasons' which may have guided the court. [Citation.] More generally, it is presumed on appeal that a judge has not relied on irrelevant or incompetent evidence. [Citation.] No error occurred." ( Biljac, supra, 218 Cal.App.3d at pp. 1419-1420.)
In a footnote at this point, the trial judge was quoted as follows: "`[W]ith respect to . . . objections that have been made by both sides to evidentiary materials submitted by the other, I do not propose to rule individually on each exception to each piece of evidence. It would be a horrendous, incredibly time-consuming task that I think would serve very little useful purpose. [¶] I have noted the objections, and in part on both sides the objections are well taken. . . . I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.'" ( Biljac, supra, 218 Cal.App.3d at p. 1419, fn. 3.)
The court's intentions were restated at the close of the hearing and again in the written order. ( Biljac, supra, 218 Cal.App.3d at p. 1419, fn. 3.)
In December 1993, the California Supreme Court decided Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [ 25 Cal.Rptr.2d 137, 863 P.2d 207] ( Ann M.), also an appeal from a summary judgment for the defendant, this in a premises liability case. The substance of the opinion begins with the following observation: "This case arises out of a civil complaint filed by Ann M. after she was raped at her place of employment. Unless otherwise indicated, the facts as stated herein are not in dispute." ( Id. at p. 670.) Footnote 1 in Ann M. states, "In the trial court, defendants made a series of objections to evidence submitted by Ann M. in opposition to the summary judgment motion. The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal. (Code Civ. Proc, § 437c, subds. (b) (c); Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1301, fn. 4 [ 284 Cal.Rptr. 53]; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540 [ 270 Cal.Rptr. 198]; Haskell v. Carli (1987) 195 Cal.App.3d 124, 129-132 [ 240 Cal.Rptr. 439].) Although many of the objections appear meritorious, for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record." ( Ann M., supra, 6 Cal.4th at p. 670, fn. 1.) No reference was made to Biljac.
The Supreme Court affirmed this principle in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, footnote 2 [ 91 Cal.Rptr.2d 35, 989 P.2d 121] ( Sharon P.), disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [ 107 Cal.Rptr.2d 841, 24 P.3d 493]. Again, however, there was no reference to Biljac.
Beginning in 1998 various Courts of Appeal began publishing cases on this issue and, sometimes discussing Biljac and sometimes not, disagreed with its holding, holding instead that a trial judge's failure to rule on the evidentiary objections must be treated as though the objections were impliedly overruled and the evidence thus part of the record for purposes of appellate review.
The first published case to so hold was Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736 [ 80 Cal.Rptr.2d 454], where, without mention of Biljac, the Court of Appeal held that "[t]he trial court's statement that it had considered only admissible evidence was not an implied ruling sustaining unspecified evidentiary objections. On the contrary, Ann M. teaches that we must take this statement as an implied overruling of any objection not specifically sustained. Thus we must deem the substance of paragraphs 2 through 4 of Laird's declaration, as to which the trial court did not expressly rule, admissible and may not consider Cap Cities' renewed objections thereto."
City of Long Beach v. Farmers Merchants Bank (2000) 81 Cal.App.4th 780 [ 97 Cal.Rptr.2d 140] ( City of Long Beach) came next. There, citing and quoting Sharon P. and Ann M., Presiding Justice Turner noted that "[typically, when a trial judge fails to rule on summary judgment or adjudication motion evidentiary objections, the California Supreme Court has held that the objections are deemed waived on appeal." ( Id. at p. 783.) Then, citing cases beginning in 1872 holding that failure to rule on evidentiary objections deems them waived, he noted that Sharon P. and Ann M. were "merely the application of the trial rule concerning waiver of . . . objections in the law and motion context." ( City of Long Beach, supra, 81 Cal.App.4th at p. 784.)
Despite that, Justice Turner went on to note that defense counsel had twice orally requested that the trial court rule on the written objections, yet the court failed to do so. And, he held, where the court neglects to rule on objections despite repeated requests by counsel, there is no waiver and the objections are preserved on appeal. ( City of Long Beach, supra, 81 Cal.App.4th at pp. 784-785.) The unpublished portion of the opinion went on to affirm the summary judgment, presumably first ruling on the objections to evidence.
The next case was Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225 [ 114 Cal.Rptr.2d 151], where the Court of Appeal devoted more than three pages to a discussion on why it disagreed with Biljac. (Id. at pp. 234-238.) The court explained: "Because it is not the function of an appellate court to make such evidentiary rulings in the first instance, we disagree with the approach set out in Biljac, supra, 218 Cal.App.3d 1410 to the extent it fosters the fiction that a trial court's failure to rule on evidentiary objections means the trial court has considered only admissible evidence. Rather, even in the summary judgment context, `Trial courts have a duty to rule on evidentiary objections.' [Citation.] When that duty is not performed, appellate courts are left with the nebulous task of determining whether the ruling that was purportedly made was within the authority and discretion of the trial court and was correct." ( Id. at p. 235, quoting City of Long Beach, supra, 81 Cal.App.4th at p. 784.)
Sambrano was followed by Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 623 [ 124 Cal.Rptr.2d 556] ( Swat-Fame), disapproved on other grounds in Zamos v. Stroud (2004) 32 Cal.4th 958 [ 12 Cal.Rptr.3d 54, 87 P. 3d 802], which described Biljac as an "unacceptable circumvention of the court's obligation to rule on the evidentiary objections presented." Citing Sharon P. and Ann M., the court agreed that when "the trial judge fails to rule on objections to evidence presented at a summary judgment motion, the objections are deemed waived on appeal." ( Swat-Fame, supra, 101 Cal.App.4th at p. 623.) The court also recognized the exception set forth in City of Long Beach, supra, 81 Cal.App.4th at page 784, that no waiver occurs "when counsel specifically requests a ruling on evidentiary objections and the trial court nonetheless declines to rule." ( Swat-Fame, supra, 101 Cal.App.4th at p. 624, fn. 7.)
Next was Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642 [ 15 Cal.Rptr.3d 587] ( Vineyard), where, after discussing Code of Civil Procedure section 437c, subdivision (d), and noting that "Section 437c repeatedly points out the trial court's duty to weigh and rule on evidentiary objections," the court observed: "In light of the foregoing statutory requirements, it has been correctly held that, when evidentiary objections are in a proper form, a trial court must rule on the objections. [Citations.] [¶] It is imperative that a trial court rule on evidentiary objections regardless of whether the motion is denied or granted. A trial court cannot decide whether a motion should be denied or granted until it has first determined what admissible evidence is in play on the motion. Moreover, when a trial court fails to rule on summary judgment evidentiary objections, the objections are ordinarily deemed waived on appeal, and the appellate court will consider the objected to evidence in reviewing the ruling on the motion. [Citations.] This is a bitter pill for a party who has tendered valid objections." ( 120 Cal.App.4th at pp. 642-643.)
The Vineyard court went on to conclude as follows: "Here, after promising the parties three times that it would rule on the evidentiary objections, the trial court inexplicably failed to do so. The trial court could not rationally evaluate the current motion without first ruling on the evidentiary objections. The trial court failed in its duty. A writ of mandate `must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' [Code Civ. Proc., § 1086.] Vineyard has no plain, speedy, and adequate remedy; it is headed for trial. We will issue a writ commanding the trial court to vacate its order denying summary judgment, to rule on all evidentiary objections, and to reconsider the summary judgment motion in light of its rulings on the evidentiary objections." ( Vineyard, supra, 120 Cal.App.4th at p. 643.)
Last year saw Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1010, footnote 4 [ 39 Cal.Rptr.3d 345] ( Lincoln Fountain) where the court observed that "[t]he trial court should have, but for some reason did not, rule on [defendant's] objections, one or more of which appear to have been well taken." Citing Sharon P. and Ann M, the court then stated that "[a]s a general rule, on appeal from an order granting summary judgment the reviewing court may consider any objected-to evidence in the absence of a ruling in the trial court." ( Lincoln Fountain, supra, 136 Cal.App.4th at p. 1010, fn. 4.)
And most recent is Cheviot Vista Homeowners Assn. v. State Farm Fire Casualty Co. (2006) 143 Cal.App.4th 1486 [ 50 Cal.Rptr.3d 1]. There, after noting that, as in Lincoln Fountain, supra, 136 Cal.App.4th 999, the trial court failed to rule on the defendant's evidentiary objections, the court stated that "[t]he trial court's assertion it considered only admissible evidence is not an acceptable alternative to a ruling on the objections." ( Cheviot Vista, supra, at p. 1500, fn. 9, citing Swat-Fame, supra, 101 Cal.App.4th 613, and Sambrano v. City of San Diego, supra, 94 Cal.App.4th 225.)
We read Ann M., supra, 6 Cal.4th 666, and Sharon P., supra, 21 Cal.4th 1181, as having impliedly overruled Biljac and establishing that trial courts must rule on evidentiary objections in the summary judgment context or the objections will be deemed waived. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321, 369 P.2d 937].) Despite this, and perhaps because neither case specifically mentioned that it was overruling Biljac, some trial courts are still apparently following the Biljac approach, at least if this case is any indication. Therefore, to the extent there remains any ambiguity in the First District as to a trial court's obligation with respect to ruling on evidentiary objections in the summary judgment setting, we hold here that the procedure countenanced in Biljac does not meet a trial court's obligation, and that a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and it if does not, the objections are deemed waived and the objected-to evidence included in the record. This, we conclude, is the holding dictated by Ann M., supra, 6 Cal.4th 666, and Sharon P., supra, 21 Cal.4th 1181, and one consistent with all published post-Biljac Court of Appeal opinions.
We are cognizant of the concerns expressed by the trial court in Biljac, that ruling on individual evidentiary objections can be a "horrendous, incredibly time-consuming task . . ." ( Biljac, supra, 218 Cal.App.3d at p. 1419, fn. 3), an observation that may have been particularly apt there, an antitrust case. However, such concerns too often present themselves in noncomplex cases as well, seemingly because, however inappropriately, litigants file blunderbuss objections to virtually every item of evidence submitted. This is hardly good advocacy, and it unnecessarily overburdens the trial court. And were counsel to reject this approach, and object instead only to items of evidence that are legitimately in dispute and pertinent to the disposition of the motion, it should ease the burden significantly. In this regard, we note that amended California Rules of Court, rule 3.1354, effective January 1, 2007, requires objections to evidence in support of or in opposition to a motion for summary judgment or summary adjudication to be submitted in a specific format and to be accompanied by a proposed order, which change should facilitate the trial court's task of considering and ruling on objections.
As discussed above, various courts have recognized exceptions to this general rule of waiver where counsel has expressly requested a ruling on the objections and the trial court has failed to rule. Illustrative is Vineyard, supra, 120 Cal.App.4th 633, where the trial court promised the parties three times it would rule on the objections, inexplicably failed to do so, and then denied summary judgment. The Court of Appeal issued a writ commanding the trial court to vacate its order, rule on the evidentiary objections, and reconsider the summary judgment motion. ( Id. at p. 643.) Likewise City of Long Beach, supra, 81 Cal.App.4th 780, which held that the objections are preserved on appeal where the trial court neglects to rule on objections despite repeated requests by counsel. And the logical next question for analysis would be whether the situation here is analogous to, or distinguishable from, the situation in City of Long Beach — that is, whether the trial court's statement that it would consider only admissible evidence is the functional equivalent of a refusal to rule, thus preserving the objections on appeal, or rather a failure to rule on the objections, thus waiving them. However, we need not decide this question because we give Demps the benefit of the situation and consider all the evidence in the record as though the objections were waived. Reviewing the record in that light, we conclude that the trial court's grant of summary judgment was correct.
While such a procedure may have been appropriate given the procedural posture there — before the Court of Appeal on a writ following denial of a motion for summary judgment — we question the efficacy of such an approach here, an appeal following a successful defense motion for summary judgment, as it would threaten to cause undue delay in rendering a final determination on summary judgment motions.
B. The Summary Judgment Was Correct1. The Law And The Standard Of Review Section 437c, subdivision (c) provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) As applicable here, with moving defendants, they can meet their burden by demonstrating that "a cause of action has no merit," which they can do by showing that "[o]ne or more elements of the cause of action cannot be separately established. . . ." (Code Civ. Proc., § 437c, subd. (0)(1); see also, Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486.) Once defendants meet this burden, the burden shifts to Demps to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) On appeal "[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]" ( Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate Demps's claims. ( Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at pp. 486-487.) Or, as we said in Horn v. Cushman Wakefield Western Inc. (1999) 72 Cal.App.4th 798, 807 ( Horn), in affirming a summary judgment for the employer, "We review the evidence presented to the trial court and independently adjudicate its effect as a matter of law. ( Lee v. Crusader Ins. Co. (1996) 49 Cal.App.4th 1750, 1756.)" Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is proper if "all the papers submitted show that there is no triable issue as to any material fact. . . ." In light of this, the evidence disclosed in opposing declarations and exhibits may be considered in determining whether a triable issue of fact exists. (See Villa v. McFerren (1995) 35 Cal.App.4th 733, 751 [deposition of moving party defendant submitted with plaintiff's opposition]; Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1042-1043; Weiss v. Chevron USA, Inc. (1988) 204 Cal.App.3d 1094, 1098-1099 [proper to consider declaration in reply to opposition]; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 [same].) With these rules in mind, we turn to an analysis of Demps's claims. 2. Demps's Claims And The Applicable Law To recapitulate, Demps alleged four causes of action. The first three were for discrimination, based respectively on (1) race, color, and national origin, (2) disability, and (3) age; the fourth was for retaliation. The discrimination claims are for "disparate treatment," that is, that Demps was treated differently from similarly situated individuals because of a protected characteristic — here, more accurately, three different protected characteristics. ( Teamsters v. United States (1977) 431 U.S. 324, 335-336, fn. 15; Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 355 ( Guz).) "California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [¶] 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." ( Guz, supra, 24 Cal.4th at p. 354.) The first step is that plaintiff must present a prima facie case. If plaintiff presents such evidence, a presumption of discrimination arises, requiring the employer to come forward with evidence "that its action was taken for a legitimate, nondiscriminatory reason." ( Guz, supra, 24 Cal.4th at pp. 355-356.) "If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." ( Id. at p. 356.) Demps's prima facie case for his first three causes of action is essentially the same, requiring him to demonstrate four elements: (1) he was a member of a protected class, (2) he was performing competently in his position, (3) he suffered an adverse employment action, and (4) some circumstance that suggests a discriminatory motive. ( Guz, supra, 24 Cal. 4th at p. 355; Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44 [disability discrimination].) The age discrimination claim also requires that Demps show he was replaced by a substantially younger person. ( Reeves v. Sanderson Plumbing Products Inc. (2000) 530 U.S. 133, 142-143; Begnal v. Canfield Associates, Inc. (2000) 78 Cal.App.4th 66, 73.) It is well recognized that demonstrating a prima facie case presents only a minimal burden. (See St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 506.) Despite that, we conclude, as did the trial court, that Demps failed to establish a prima facie case on his first three causes of action, as the undisputed evidence demonstrated that Demps could not show he was performing his job competently. 3. Demps Failed to Demonstrate He Was Performing Competently As developed at length above, Demps's termination was initiated by the facts uncovered in the Housing Authority's investigation into the attempted murder charge, which led to the revelation — contained in Demps's own letter, no less that he had paid Celestine to move furniture at 1880 Pine. This revelation, it should be noted, was confirmed in Demps's own testimony at deposition where, for example, Demps admitted that "usually once in a while I [would] get someone to help me." Given Demps's contact with, not to mention access to, the elderly and disabled residents of 1880 Pine, this was in violation of the position of trust Demps admitted he held. Moreover, Demps acknowledged that he had previously been warned that hiring others to perform his work in the building would result in his termination. But there is even more. One of the exhibits introduced by Demps as part of his declaration was a report from the San Francisco Police Department for an incident on December 25, 2000, involving a complaint by Bray that Keven Butler, a relative of another tenant, had threatened her. The report states that the officer "responded to apartment 410 and spoke to the resident there who told me Butler was not present. I was directed to apartment 401 to speak to the manager. I contacted [witness] Demps in Apartment 401. Demps said he is the resident custodian. Demps said Hunter [sic: Butler] works for him cleaning up in 1880 Pine Street and helps him take out the trash. Demps said Bray is a troublemaker and that [Butler] has done nothing to Bray to his knowledge. [¶] As I was leaving the 4th floor I ran into [Butler]. [Butler] was cooperative and agreed to answer all my questions. [Butler] said he did not threaten Bray but that Bray hates him and tells lies about him. [Butler] said he is working in 1880 Pine tonight taking out the trash. Demps confirmed this statement." In sum, the record reveals that Demps had, contrary to instruction, in fact hired at least two people, and had been warned that such hiring could result in his termination. In his opposition, Demps stated, however conclusorily, that "I always performed all of my duties myself without assistance from anyone. Nor did I ever pay anyone to assist me in performing or to perform any of my duties." Such declaration, we hold, cannot avail Demps, as it contradicts his prior deposition testimony, not to mention his admissions in his September 23, 2002 letter to Leonor as well as to the police officer on December 25, 2000. ( D'Amico v. Board of Medial Examiners (1974) 11 Cal.3d 1, 22 [party's admissions made during a deposition cannot be contradicted solely by that party's declaration in opposition to a motion for summary judgment].) "Admissions or concessions made during the course of discovery [deposition testimony] govern and control over contrary declarations lodged at a hearing on a motion for summary judgment." ( Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613, and cases there collected.) Moreover, our observation in Horn, supra, 72 Cal.App.4th at p. 807, is apt: "an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture. (See Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.)." In sum, our review of the evidence leads to the conclusion that Demps has failed to show a necessary element of his prima facie case on his first three causes of action — that he was competently performing his job. Thus, Demps's first three causes of action have no merit against the Housing Authority. And despite that he named Roetzer in all causes of action, Demps acknowledged below, as he does here in his reply brief, that Roetzer cannot be liable for any of the three claims for discrimination. ( Reno v. Baird (1998) 18 Cal.4th 640, 645-646; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 62.) Demps's fourth cause of action, for retaliation, could lie against Roetzer individually, as we observed in Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1241-1242. We thus turn to this cause of action and conclude that it, like the other three, has no merit. 4. Demps Has Not Demonstrated Retaliation Division One of this Court has recently distilled the applicable law, in McRae v. Department of Correction and Rehabilitation (2006) 142 Cal.App.4th 377, 386: "Government Code section 12940, subdivision (h) makes it unlawful for an 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 this part.' (See also Lab. Code, § 1102.5, subd. (b).) To establish a prima facie case of retaliation, the plaintiff must show he or she engaged in a `protected activity,' the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employer's action." (Citing Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The statutory language of Government Code section 12940, subdivision (h) indicates that protected conduct can take many forms. Specifically, section 12940, subdivision (h) makes it an unlawful employment practice "[f]or 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 this part." Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. ( Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 ( Morgan).) If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation "`"drops out of the picture,"'" and the burden shifts back to the employee to prove intentional retaliation. ( Morgan, at p. 68.) As Presiding Justice Kline explained, "`The retaliatory motive is "proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter." [Citation.] "The causal link may be established by an inference derived from circumstantial evidence, `such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision." `[Citations.]" ( Id. at p. 69.) The Housing Authority argued below that there was no protected activity. Demps argued that he engaged in a protected activity, which consisted of "continuing complaints of unlawful discriminatory employment practices as reflected in Plaintiff's Separate Statement of Undisputed Facts Number 13." Demps's Undisputed Fact No. 13 reads in its entirety as follows: "Linda Bray also constantly without cause confronted tenants in the building in a hostile threatening manner with a variety of baseless accusations. Attached hereto as Exhibit 4 are true and correct copies of documents reflecting the endless stream of harassment conduct by Linda Bray. Furthermore, Demps has in his possession copies of 100 or more documents including false police reports, and vexatious civil actions reflecting the abuses of Linda Bray against him and others. . . . Dec. Pltf. Par. 13; Deposition of Plaintiff, pages 62-134." The trial court concluded that Demps was unable to establish that he engaged in protected activity. Claiming that the trial court erred in so concluding, Demps now argues as follows: "However, the substantial credible evidence in the record demonstrates that Demps in fact did engage in extensive protected activity, i.e., protesting to his supervisors the continuing unlawful discriminatory employment practices being taken against him in violation of the Fair Employment and Housing Act, Government Code Section 12940[, subdivisions] (a) and (h). [¶] Demps has presented substantial credible evidence that he engaged in a protected activity by protesting to his supervisors and officials of the Housing Authority to cease the abusive conduct which Defendants aided and abetted in allowing Linda Bray to continue for several years against him on account of his race and color. (Cl. Rec. P. 283-288) Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441. [¶] Accordingly, Demps has clearly met the requirement in Flait, supra, [ 3 Cal.App.4th 467] and Akers, supra, [ 95 Cal.App.4th 1441] of showing that he has engaged in protected activities." The reply brief is no better. Recognizing that "the only issue before this court relative hereto is whether Demps has presented substantial credible evidence that he engaged in a protected activity," Demps goes on to assert that, "The record easily demonstrates that he has and that the Housing Authority's contention to the contrary must be rejected out of hand. [¶] Demps has presented substantial credible evidence that he was subjected to continuing egregious harassment in violation of Government Code section 12940[, subdivision (j)], which was caused, aided and abetted and acquiesced in by the Housing Authority which perpetuated rather than immediately halt same. (Cl. Rec. 283-284; 287-288; FEHA Administrative Charge filed by Demps Cl. Rec. p. 19.)" That is it. It is hardly evidence of protected activity. And it certainly does not satisfy Demps's burden of establishing of a prime facie case of retaliation. In a final argument, Demps contends that the trial court "erred in determining that [he] cannot establish individual liability for retaliation (harassment) against . . . Roetzer" because "Roetzer is clearly liable for harassment of Demps in violation of the express provisions of Government Code section 12940[, subdivision (j)]. . . ." The foundation for any harassment claim is unclear, but to the extent such a claim is based on a theory that Roetzer harassed Demps, there is not one iota of evidence in the record supporting this claim. To the extent such a claim is based on a theory that Roetzer was aware that Demps was being harassed by Bray, Roetzer would not be subject to liability. ( Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326.) Under either theory, the trial court properly granted summary judgment.
See footnote, ante, page 564.
III. DISPOSITION
For the reasons set forth in the unpublished portions of the opinion, the summary judgment for the Housing Authority and Roetzer is affirmed.Kline, P. J., and Haerle, J., concurred.