Opinion
NOT TO BE PUBLISHED
McAdams, J.
Following the termination of her employment as vice president of the corporate defendant, plaintiff Tutu Lawal brought this action, asserting discrimination and other claims. Plaintiff’s causes of action for race and gender discrimination were summarily adjudicated in defendant’s favor, and plaintiff dismissed her remaining claims. On appeal, plaintiff asserts that the trial court erred in summarily adjudicating her discrimination claims. For reasons set forth below, we reject those assertions. Plaintiff also argues that the trial court should have ruled on her evidentiary objections. As explained below, regardless of the validity of that argument, the outcome was not affected by the trial court’s failure to do so here. We therefore affirm the judgment.
Presiding Justice Rushing dissents from this conclusion. (See dis. opn., pp. 1, 33.)
The dissent urges that it should not be necessary for a party to secure a ruling from the superior court in order to preserve the evidentiary objection for appellate review. As a whole, the cases do not necessarily require a party to secure a ruling, if the party requests a ruling at the hearing on the motion. Because the evidentiary objections that Lawal raises on appeal in this case are not meritorious, this case does not present an appropriate vehicle for us to address the precise question of what is necessary to preserve an evidentiary objection for appellate review.
It is a famous football aphorism that “When you throw the ball, three things can happen, and two of them are bad.” Similarly, when a motion for summary judgment is granted, three things can happen, and two of them are bad. If the challenged claim or defense was in fact unsustainable, its summary adjudication produces the hoped-for positive result, i.e., the judicial resources that would have been devoted to a pointless trial are conserved. But if the claim or defense was in fact sustainable, the order will result either in its mistaken obliteration, or in a reversal on appeal, followed by a trial. This third possibility, of course, reflects a substantial waste of judicial resources, not to mention additional delay in bringing the matter to a proper conclusion.
The panel disagrees on whether and how we should treat the issue of evidentiary objections. As expressed in his dissent, Presiding Justice Rushing’s general view is that reviewing courts should presume either that the trial court ruled correctly or that it overruled all objections. (Dis. opn., p. 5.) As stated in his concurring opinion, Justice Mihara considers most of plaintiff’s evidentiary objections forfeited. (Conc. opn., pp. 1, 2.) While he would not address the evidentiary issues deemed forfeited, Justice Mihara nevertheless concurs in the judgment. (Id., pp. 1, 6.)
BACKGROUND
Plaintiff and appellant Tutu Lawal is a certified public accountant. She holds a masters degree in business administration from the University of San Francisco. Though born in Nigeria, plaintiff is generally perceived as an African-American.
Plaintiff’s former employer is defendant and respondent 501(c) Insurance Programs, Inc. Defendant provides investment and financial management to nonprofit organizations, as well as “insurance-related programs,” mainly “in connection with unemployment claims by employees of such organizations.” Among defendant’s clients are several trusts, including the Northwest Agencies Trust (NAT). The company’s founder and principal shareholder is defendant John Huckstadt. Huckstadt started the company in 1982. In 1995, he hired Susan Grose to assist him with daily operations and financial management. By 2001, Huckstadt had delegated all day-to-day management responsibility for the company to Grose. He promoted Grose to president and chief executive officer that same year.
In December 2001, Grose recruited plaintiff to serve as the company’s vice president of finance and member services. An offer letter for at-will employment was prepared, which plaintiff signed. At the time, defendant had one other vice president, James Claitor, who was hired in 2000 to provide marketing services. According to Huckstadt’s declaration, the two vice presidencies were created “to establish a possible succession of leadership for the company” when he and Grose “both retired and/or the company was sold.”
Plaintiff began serving as defendant’s vice president of finance and member services in January 2002. She had both “internal” and “external” duties. Among plaintiff’s internal responsibilities were financial and staff management for defendant; her external duties included oversight of the financial services provided to defendant’s clients. After plaintiff’s first year in defendant’s employ, Grose gave her a positive performance review, a raise, and a bonus. Grose rated plaintiff’s performance as “very strong,” while noting that in “the area of staff management … she was still working on polishing some skills, primarily to do with communication….”
Starting in late 2002, Huckstadt began receiving employee complaints about plaintiff’s “abusive and condescending behavior toward her staff.” In early 2003, Huckstadt received more complaints from plaintiff’s own “staff as well as … other employees, independent contractors and vendors” about her “abusive, arrogant, disrespectful and overbearing treatment….” The complaints were not documented. Nor were they communicated to plaintiff. Huckstadt began talking with Grose about a “possible return to the company in an active role.”
In April 2003, a proposal was floated to sell the company – or at least Huckstadt’s shares – to plaintiff and Claitor. Arrangements were made for a business valuation, and financing discussions were undertaken. When the appraisal for the company came in, it was between five and six million dollars, which was well below Huckstadt’s expectations. Rather than sell his shares, Huckstadt decided “to come out of retirement and return to an active role in the company, primarily as a leader in the sales and marketing area.”
Huckstadt assumed the company’s “day-to-day management” in May 2003. According to Huckstadt’s declaration, Grose “was not willing to co-manage the company” with him, “and she submitted her resignation effective May 31, 2003.” That fact is confirmed in plaintiff’s declaration as well. Huckstadt’s declaration continues: “Between May and July 2003 I continued to receive complaints from staff about [plaintiff’s] behavior and treatment of subordinates and vendors.” Huckstadt “observed her management style to be very inconsistent, and while she treated staff reasonably one day, she would be abusive the next day.”
Starting in late May 2003, negotiations were undertaken between defendant and the two vice presidents, conducted through the company’s counsel, Peter Whitman, and apparently aimed at modifying the terms of employment both for plaintiff and for Claitor. By e-mail, Whitman sent plaintiff a letter agreement, addressed to her from Huckstadt, dated June 20, 2003, and marked “draft.” The unsigned letter begins: “As we have discussed, I am very interested in having you remain an important part of the 501(c) management team. Therefore, I am writing in order to modify the terms of your employment which are established in our letter to you of December 19, 2001.” Under the draft proposal, there would be no change in position, fringe benefits, or eligibility for an annual performance bonus. Unless terminated earlier by either party, employment would continue through June 2005. The company would offer retention bonuses, in “recognition of the importance of [plaintiff’s] continued services at [defendant] during this transition period….” Plaintiff believed that defendant was satisfied with her services at this time, particularly given the proposed bonuses and the specified duration of employment.
By early July 2003, however, defendant’s attorney sent an e-mail to plaintiff advising that Huckstadt was “for the moment, withdrawing his proposal of additional employment terms and compensation.” Huckstadt describes the precipitating event for the break-down in negotiations as an incident in which the company’s “outside unemployment claims manager, Paul Fountain of TALX, was ordered out of the room so … Claitor and [plaintiff] could interview Mr. Fountain’s assistant out of his presence.” Huckstadt’s declaration continues: “Mr. Fountain and his superior were outraged by this conduct and considered it overbearing and inappropriate.” Huckstadt “strongly rebuked” both vice presidents. Again, however, the company did not memorialize the incident or Huckstadt’s statements to plaintiff and Claitor.
“In late June or early July 2003,” Huckstadt declares, he decided to relieve plaintiff of her “staff management responsibilities” and to have plaintiff’s subordinates report directly to him. He made a similar decision concerning Claitor. He advised the two vice presidents “that they would continue to perform all non-supervisory responsibilities of their positions without reduction in their compensation.” In deposition testimony, Huckstadt refers to this action as a “demotion,” which took place in June 2003. As reasons for the claimed demotion of plaintiff, Huckstadt cited her “clear unwillingness to make adjustments in her personal management style, continued problems with personnel, [and] a belligerent attitude toward [him].” Plaintiff declares that she first learned of the “phantom demotion” when she read Huckstadt’s deposition transcript.
Huckstadt described subsequent events and decisions in his declaration as follows: “Through September 2003, even though [plaintiff] was not managing staff, she still worked with them. I continued to receive complaints about her from staff and I tried to counsel her to change her approach to the staff with whom she still had to work. On several occasions during the summer of 2003 [plaintiff] acted in a manner toward me that I considered disrespectful or insubordinate, including walking out of meetings with me in the middle of our discussions.” As before, however, complaints about plaintiff’s conduct were never memorialized. Ultimately, Huckstadt “determined that it would be bad for the company to return [plaintiff] to a staff management role and that if she was not managing staff, [he] could not justify paying her a vice president’s salary of $150,000 per year.” Huckstadt therefore decided to end the company’s employment relationship with plaintiff.
In early October 2003, Huckstadt had a lunch meeting with plaintiff at which he terminated her employment, effective as of the end of the month. At that time, Huckstadt offered plaintiff “an independent consulting role to assist in financial management without staff or contractor supervisory responsibility but she declined the offer.”
PROCEDURAL HISTORY
Plaintiff brought this action in November 2003. She asserted five causes of action against the company: race discrimination; gender discrimination; tortious employment termination in violation of public policy; breach of contract; and breach of the implied covenant of good faith and fair dealing. In addition, plaintiff asserted a battery claim against Huckstadt personally, based on an allegation that he threw wine corks at her during a client meeting.
Summary Adjudication: Motion, Opposition, Reply, and Objections
In February 2005, the company moved for summary adjudication as to all five causes of action asserted against it. In support of the motion, defendant submitted a separate statement of undisputed facts supported by evidence that included Huckstadt’s declaration and excerpts from the deposition transcripts of plaintiff and three other employees, Claitor, Maureen Marfell, and Lorraine Phillips. The deposition testimony of the three employees reflects their observations on plaintiff’s poor management style. Huckstadt’s declaration sets forth the history of the company, his view of it as a “family” with a “diverse” workforce, his dissatisfaction with plaintiff’s interactions with her subordinates and others, and his resulting employment decisions. Huckstadt declared that he had never made “any sexually suggestive or gender discriminatory comments” or “any racially insensitive comments” to or about plaintiff, nor had he ever “used any racial epithets.” Acknowledging that he may have called plaintiff “Babe,” Huckstadt explained that he used the term “with males and females alike when … trying to build their confidence….”
In response to the motion, plaintiff first interposed 19 separately numbered objections to the defense evidence. Nine of plaintiff’s objections were directed to the deposition excerpts, while the others targeted Huckstadt’s declaration. Plaintiff specifically requested a ruling from the trial judge on each objection. Plaintiff also presented objections in her opposing separate fact statement.
Plaintiff also opposed the motion on the merits, insofar as it addressed her first three causes of action, for discrimination and tortious employment termination. As to the contract claims asserted in her complaint, plaintiff voluntarily dismissed those two causes of action prior to responding to the motion. Plaintiff’s opposition evidence included her own declaration, as well as her attorney’s declaration, which described and attached the deposition testimony of various witnesses, and which also attached discovery responses. As disclosed by her evidence, plaintiff had been told that Huckstadt was or had been sexually intimate with a number of key female employees, that he tended to discuss women in sexual terms, that he had “problems dealing with assertive women,” and that he had unsuccessfully propositioned Grose within “a month or so” after she was first hired in 1995; Huckstadt had called plaintiff “babes,” “honey,” and “sweetie” and a “silly little girl”; Huckstadt had accused plaintiff of giving “fucking dumb stupid directions” to Terri Oakley, an employee who was his ex-wife; Huckstadt reportedly had concerns “along racial lines” about hiring an African-American employee, Ron Lawson; and, when plaintiff complained about inappropriate racial comments made by a subordinate, Jerry Hecker, Huckstadt treated the complaint cavalierly. When Huckstadt fired plaintiff, he told her “you are not one of us,” “you are not part of the family,” and “I don’t understand people like you.”
Defendant replied to plaintiff’s opposition on the merits, submitting both points and authorities and additional evidence. The proffered reply evidence largely reinforced or explained the evidence originally submitted with the motion. It included additional portions of the depositions of several employees whose testimony was already in the record: Phillips (offered by defendant in its moving papers), Grose (offered by plaintiff in opposition), and plaintiff, Marfell, and Claitor (offered by both parties). But the defense reply evidence also included deposition testimony from two other employees, Oakley and Hecker.
Along with its reply, defendant also interposed 140 objections to the evidence submitted by plaintiff in opposition to the motion. Thereafter, plaintiff objected in writing to defendant’s reply evidence, arguing that failure to submit that evidence with the moving papers violated her due process rights. As before, plaintiff specifically requested a ruling from the trial judge on her objection.
Hearing, Decision, and Judgment
On April 28, 2005, the trial court heard the defense motion for summary adjudication. After entertaining argument from both counsel, the court took the matter under submission. The court granted the motion by formal order entered May 4, 2005, which was followed shortly thereafter by a corrected order.
As relevant here, the corrected order states: “The motion for summary adjudication to the first and second causes of action for race and gender discrimination is granted. Defendant established a legitimate, nondiscriminatory reason for terminating plaintiff, namely that she was unable to effectively manage and work compatibly with defendant’s employees. In order to avoid summary adjudication, it was therefore incumbent upon plaintiff to show that the proffered reason for her termination was a pretext for race or gender discrimination.” The court concluded that plaintiff had not done so. As the court observed, “plaintiff did not offer any direct evidence on the question of defendant’s motive. [Thus] plaintiff was required to offer specific and substantial [circumstantial] evidence from which a reasonable trier of fact could infer that defendant’s stated reason for plaintiff’s termination is unworthy of credence or a pretext for a discriminatory motive. Plaintiff failed to satisfy that burden. The shortcomings in plaintiff’s evidence can be summarized as not establishing or even suggesting a causal connection between Mr. Huckstadt’s stray remarks regarding race and gender [and] plaintiff’s termination.” The order further states: “The motion for summary adjudication to the third cause of action for termination in violation of public policy is granted because the predicate first and second causes of action lack merit.” As to the fifth and sixth causes of action, representing the contract claims that plaintiff had dismissed the previous month, the court found the motion moot.
After the court issued its original formal order, plaintiff dismissed her only surviving claim, the fourth cause of action for battery against Huckstadt. The trial court thereafter entered judgment for defendant.
Appeal
In July 2005, plaintiff brought this timely appeal.
She asserts trial court error on several grounds. (1) Concerning her evidentiary objections, plaintiff asserts both that the court should have made a specific ruling concerning each objection and that it should have sustained all of them. (2) As to the court’s conclusion that she failed to overcome defendant’s evidence of legitimate reasons for terminating her employment, plaintiff argues that the court erred (a) by not treating Grose’s statements concerning gender discrimination as party admissions by defendant; (b) by characterizing Huckstadt’s discriminatory comments as isolated or insubstantial; and (c) by ignoring inconsistencies in Huckstadt’s testimony. (3) Additionally, with respect to the court’s determination that she failed to overcome the defense evidence, plaintiff argues that she presented substantial evidence of her competence.
DISCUSSION
I first address the evidentiary issues raised by plaintiff here.
As noted above (at p. 2, fn. 2), and below (at p. 15), neither Presiding Justice Rushing nor Justice Mihara joins this analysis.
I. Evidentiary Issues
Each party interposed numerous objections below to the other’s evidence, and plaintiff specifically requested evidentiary rulings from the trial court. On appeal, plaintiff argues that the trial court should have ruled on and sustained her objections. Defendant defends the court’s decision. As I now explain, I agree with plaintiff’s procedural argument that the court should have specifically ruled on her objections. I also agree that some of those objections should have been sustained.
A. The Requirement of Admissible Evidence
At the outset, I reiterate this well-established principle of law: “Documentary evidence submitted in support of or opposition to a summary judgment motion must be in the form of admissible evidence.” (6 Witkin, Cal. Procedure (4th ed., 1997) Proceedings Without Trial, § 209, p. 621; see also, e.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120.)
B. Movant’s Reply Evidence
As plaintiff points out, there is authority precluding the consideration of supplemental reply evidence submitted by the moving party. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312.) “While the code provides for reply papers, it makes no allowance for submitting additional evidence or filing a supplemental separate statement.” (Id. at p. 313, citing Code Civ. Proc., § 437c, subd. (b).) Permitting the moving party to offer reply evidence would undercut the responding party’s ability to effectively oppose the motion. (Id. at p. 316.) “Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” (Ibid.) Nevertheless, the court noted: “Whether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion.” (Ibid.) Furthermore, another case found no error where the trial court considered “dispositive evidence” that “did not accompany the original moving papers.” (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098.) That case holds “that the court should consider all admissible evidence of which the opposing party has had notice and the opportunity to respond.” (Ibid.)
In this case, the defense reply included (1) additional evidence from several employees or former employees, whose testimony was already in the record: Phillips, Grose, Marfell, Claitor, and plaintiff; plus (2) deposition testimony from two other employees: Oakley and Hecker. As we see it, those two categories of evidence merit different treatment under the foregoing authority.
I view the first category as representing permissible reply evidence, for several reasons. First, it relates to issues that were already raised and supported in the moving papers. Significantly, the reply evidence in this first category does little more than reinforce or expound on the defense evidence originally submitted with the motion. Second, to the extent that these witnesses’ deposition testimony was already in evidence to support claims made in the motion, plaintiff had notice that defendant might rely on it. (Weiss v. Chevron, U.S.A., Inc., supra, 204 Cal.App.3d at p. 1098.) For that reason, I perceive no violation of due process precepts.
By contrast, in my view, the use of testimony from previously undisclosed witnesses fails to provide “adequate notice of what facts [plaintiff] must rebut in order to prevail.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at p. 316.) For that reason, I believe that reply evidence from the second category should not be considered.
C. The Trial Court’s Ruling
In its formal order after hearing, the trial court stated that it “declines to render formal findings on the evidentiary objections, but has disregarded all inadmissible and incompetent evidence in ruling therein.” The court cited Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac). Nevertheless, the court did rule specifically on one of plaintiff’s objections, made on grounds of speculation and hearsay, which was addressed to statements by John Huckstadt, the founder, chief executive officer, and principal shareholder of the corporate defendant, that staff morale was low and that several employees had told him that “they had been considering leaving the company because of Ms. Lawal’s treatment.” The court overruled plaintiff’s objections to those statements, finding “the subject testimony purports to explain a condition perceived by the declarant and/or establishes the state of mind of the declarant.”
D. Analysis: The Current State of the Law
1. The need for an explicit ruling on objections
The trial court’s refusal to rule specifically on each objection finds support in the Biljac case. (Biljac, supra, 218 Cal.App.3d 1410.) But the Biljac court itself recently repudiated its earlier decision. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566 (Demps).) And intervening appellate decisions from other courts also have taken issue with Biljac on this point. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236; Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 623, disapproved on another point in Zamos v. Stroud (2004) 32 Cal.4th 958, 973; Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642-643.) As another recent case observed, the Biljac approach “is not ideal, and has been criticized by many courts. However, on the record in this case, given the nature and volume of the objections, the trial court did not abuse its discretion in not ruling on each of them.” (Tilley v. CZ Master Assn (2005) 131 Cal.App.4th 464, 479.) This court has not yet weighed in on the issue in a published opinion. (But see, e.g., Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1348, fn. 6 [noting the conflict in the law, but not addressing it]; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 104, fn. 8 [citing Biljac, but neither adopting nor rejecting it]; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 864 [applying Biljac’s presumption that the trial judge did not rely on improper evidence].)
In one of the cases rejecting the Biljac analysis, Swat-Fame, the court calls the approach “an unacceptable circumvention of the court’s obligation to rule on the evidentiary objections presented.” (Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at p. 623.) As that court said: “When, as here, the trial judge fails to rule on objections to evidence presented at a summary judgment motion, the objections are deemed waived on appeal.” (Id. at p. 623; see also, Miller v. Department of Corrections (2005) 36 Cal.4th 446, 452, fn. 3.)
In another case, Sambrano, the court observed: “In the first place, although summary judgments are reviewed de novo, this rule presupposes there is an established record on which appropriate legal conclusions can be drawn de novo.” (Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 235.) Any uncertainty about the scope of the evidentiary record renders appellate review more difficult, since the reviewing court considers only “the facts from the record that was before the trial court when it ruled on [the summary judgment] motion.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “The vice of the Biljac approach is that it does not assist us in determining what record below was established, so that we as an appellate court may draw correct legal conclusions from that undisputed record.” (Sambrano, at p. 238.) “Moreover, ruling on such evidentiary objections can involve a number of considerations more suited to the trial court than the appellate courts, including an exercise of discretion in establishing the record to be reviewed de novo.” (Id. at p. 236.) Ruling on evidentiary objections “is not always a simple task, and not one suitable to this court, normally sitting as a three-judge panel committed to reviewing issues of law, not fact.” (Ibid.)
A third case, Vineyard Springs, made the same point even more forcefully: “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.” (Vineyard Springs Estates v. Superior Court, supra, 120 Cal.App.4th at p. 642.) In Vineyard Springs, the appellate court issued a writ, commanding the trial court to rule on all evidentiary objections. (Id. at p. 643.) As the court observed, declaring a party’s forfeiture for failure to secure a sought-after ruling would be “a bitter pill for a party who has tendered valid objections.” (Ibid.)
Finally, as noted above, the First District Court of Appeal, which authored Biljac, recently renounced its earlier decision in the 2007 Demps case. (Demps, supra, 149 Cal.App.4th at p. 566.) As the court flatly stated in Demps, “the procedure we approved in Biljac … was wrong.” (Ibid.) The court detailed the development of the law in this area following its decision in Biljac. (Id. at pp. 576-578.) It interpreted two post-Biljac decisions by the California Supreme Court “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.” (Id. at p. 578, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 and Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181.) Following this analysis, the Demps court concluded “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 [if it] does not, the objections are deemed waived and the objected-to evidence included in the record.” (Demps, at p. 578.)
2. Authority in this district
Defendant’s contrary assertion notwithstanding, this court has never expressly adopted the Biljac approach per se – but neither have we rejected it outright. (See, e.g., Browne v. Turner Construction Co., supra, 127 Cal.App.4th at p. 1348, fn. 6; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 104, fn. 8; Benavidez v. San Jose Police Dept., supra, 71 Cal.App.4th at p. 864.) And given the opinions of the justices participating in this decision, there is no opportunity to do so here.
In his dissent, Presiding Justice Rushing likens the current state of the law to a “festering procedural swamp.” (Dis. opn., p. 5.) He favors an approach that presumes “either that the trial court ruled correctly on evidentiary objections or that the court overruled all objections it did not expressly sustain.” (Id. at pp. 5-6.) In this case, he “would consider, as appropriate, the admissibility of the parties’ evidence in light of their respective objections.” (Id. at p. 15.)
In his concurring opinion, Justice Mihara observes that “three issues have continued to trouble appellate courts.” (Conc. opn., p. 2.) They are: (1) the trial court’s obligation to rule on evidentiary objections; (2) the necessary steps for preserving objections; and (3) the appellate court’s role in addressing preserved objections. (Ibid.) But he concludes that this case presents no “substantial questions” as to any of those three issues. (Id. at p. 3.)
As author of the lead opinion, I would require the trial court to rule on key evidentiary objections. I espouse this principle: “Part of the judicial function in assessing the merits of a summary judgment or adjudication motion involves a determination as to what evidence is admissible and [what] is not.” (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784.) Biljac short-circuits that function. Moreover, the Biljac approach effectively “transfers the evidentiary ruling job to the appellate court,” which is not the best forum for that task. (Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 236.)
I recognize the difficulty of the trial court’s task in this regard, especially in cases such as this, where the objections are numerous and dense – or, as the dissent characterizes them, oppressive. (See dis. opn., pp. 15-19, discussing defendant’s objections.) In my opinion, however, depending on the particular case, it may not be necessary for the court to specifically address each individual objection. (Cf., Tilley v. CZ Master Assn, supra, 131 Cal.App.4th at p. 479; Demps, supra, 149 Cal.App.4th at p. 578.) But at the very least, I would hold, the trial court should rule on those objections that are critical to establishing or refuting material facts in the case. Conversely, the court need not rule on objections to the moving party’s evidence, offered in support of a particular material fact statement, where the opponent’s unobjectionable evidence raises a dispute as to that fact.
In this case, for example, according to defense fact statement 5, plaintiff “Lawal did not respond to counseling about her management style.” To controvert that statement, plaintiff submitted paragraph 44 of her own declaration, which states: “No such counseling ever took place.” Defendant did not object to that specific evidence. Plaintiff’s evidence thus raises a material factual dispute on the question of whether defendant counseled plaintiff. That being so, there was no need for the court to address plaintiff’s objections to defendant’s evidence.
In any event, regardless of difficulty, I believe that it is the trial court’s duty to rule on the objections in a way that makes clear what evidence it is considering. (City of Long Beach v. Farmers & Merchants Bank, supra, 81 Cal.App.4th at p. 784; Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 235.) In my view, transparency in making this important determination would serve at least two vital goals: it would reinforce the parties’ faith in the judicial system, and it would promote a more effective appellate process.
3. Application to this case
I believe that it is incumbent on this court to address the key evidentiary issues presented below, in an effort to establish the parameters of the record before us. In my view, that analytic task is properly undertaken here – rather than on remand by the trial court – for two reasons. First, neither plaintiff nor defendant has asked this court to remand this matter to the trial court for evidentiary rulings. (Cf., Vineyard Springs Estates v. Superior Court, supra, 120 Cal.App.4th at p. 635 [defendant requested a writ commanding the trial court to rule on its objections].) To the contrary, at oral argument, plaintiff’s attorney expressly declaimed any need for remand. Second, the trial court’s Biljac ruling in this case appears to be part of a long-standing practice in Santa Clara County Superior Court. Concerning the need to address the matters here, I respectfully disagree with Justice Mihara’s conclusion that plaintiff forfeited her evidentiary objections by failing to renew them all on appeal or by submitting “less than adequate argument” to support them. (Conc. opn., at p. 3.)
In the trial court, plaintiff objected to specified portions of defendant’s proffered evidence. Plaintiff’s objections rested mainly on grounds that the challenged evidence constituted hearsay, that it lacked a foundation in personal knowledge and/or was speculative, and that its use in defendant’s separate statement misstated testimony. Plaintiff also challenged certain defense evidence as vague, irrelevant, or impermissible opinion. Of defendant’s 140 objections, the majority cited irrelevance, hearsay, lack of personal knowledge, and/or improper opinion. The following discussion addresses plaintiff’s principal objections to the defense evidence here, beginning with her hearsay objections.
In some instances, plaintiff attacked parts of the underlying evidence unrelated to defendant’s separate fact statement. For example, defendant’s undisputed fact 1 states that Huckstadt began receiving complaints about plaintiff in 2002 and 2003, and it cites paragraphs 8 and 9 of Huckstadt’s declaration in support. Plaintiff objected to the assertion in paragraph 8 of the declaration that she lacked staff management experience. Because the challenged statement does not relate to the proffered fact, plaintiff’s objection is misplaced and irrelevant. (Cf., Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 106 [what a witness “might have said in deposition is not, as such, a ‘material fact’ ”].) Plaintiff repeats this misguided pattern throughout her separate statement (for example, at statements 2, 5, 8, and 24). As they have no bearing on the establishment of material fact issues, we will not address such objections further.
a. Hearsay
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Conversely, an out-of-court statement is not hearsay when it is offered for other purposes, such as its effect on the listener. (See Evid. Code, § 1250; People v. Jablonski (2006) 37 Cal.4th 774, 820 [victim’s statement that she was afraid of defendant was admissible – not to prove that she was afraid, but to show its effect on defendant and his premeditation]; Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 132-133 [arresting officer’s statement that motorist was weaving was admissible – not to prove weaving, but to show reasonable cause to stop motorist]; cf., People v. Deeney (1983) 145 Cal.App.3d 647, 651-652 [statements by defendant’s wife and another witness were not admissible under “state of mind” hearsay exception, where they were offered to prove that defendant had hit his wife on a prior occasion].)
Plaintiff interposed hearsay objections to Huckstadt’s declaration and to deposition testimony by Claitor and Marfell. In part, plaintiff’s objections related to reports of complaints about her management style. As presented, however, the challenged statements were not offered for the truth of the matter asserted – for example, that plaintiff’s behavior was abusive and condescending – but rather for the effect of those complaints on Huckstadt, who became concerned about plaintiff’s negative impact on the company. (Cf., Cantrell v. Zolin, supra, 23 Cal.App.4th at pp. 132-133; see Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 104, fn. 8 [“report might have been admissible for a nonhearsay purpose if it were shown that Safeway relied on it in deciding to dismiss plaintiff”].) As the trial court observed in connection with another of plaintiff’s hearsay objections, “the subject testimony purports to explain a condition perceived by the declarant and/or establishes the state of mind of the declarant.” Other hearsay objections by plaintiff related to statements about her being “part of the family.” But the challenged statements were offered to show context. (Cf., Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 814.) For these reasons, plaintiff’s hearsay objections lack merit.
b. Personal knowledge; speculation
To be competent, testimony submitted in connection with summary judgment motions must be made on the witness’s personal knowledge. (See Code Civ. Proc., §§ 437c, subd. (d); 2015.5; Evid. Code, § 702; Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1059-1060 [noting that plaintiff lacked personal knowledge of discriminatory intent on the part of defendant]; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1121 [stating that “plaintiff has no personal knowledge” of matter stated as fact]; People v. Valencia (2006) 146 Cal.App.4th 92, 103 [“requiring a hearsay declarant to have personal knowledge when the declarant’s statement is admitted for its truth”].) “Personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638; accord, Guthrey v. State of California, at p. 1120.)
Plaintiff objected to the first portion of defense fact statement 2, which relates to an incident involving defendant’s outside unemployment claims manager, Paul Fountain of TALX, on the ground that Huckstadt failed to demonstrate personal knowledge. On its face, that objection is well-taken, as neither the statement itself nor the supporting evidence indicates that Huckstadt was present during the incident. (Cf., Le Bourgeois v. Fireplace Manufacturers, Inc., supra, 68 Cal.App.4th at pp. 1059-1060.) For its part, defendant countered that there is no dispute that the incident took place, citing deposition testimony of both plaintiff and Grose. The cited deposition transcript pages were submitted by defendant in reply to plaintiff’s opposition. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at p. 313 [summary judgment statute makes no allowance for submitting reply evidence].) However, other portions of those same depositions were already in evidence, and plaintiff presumably had notice of them. (Weiss v. Chevron, U.S.A., Inc., supra, 204 Cal.App.3d at p. 1098.) Furthermore, Claitor also testified to the incident at his deposition, and that specific testimony was included with defendant’s moving papers. Thus, the trial court would be acting within its broad discretion to admit the statement. Assuming that the court did consider the evidence, it does little more than add specificity to defendant’s fact statement 1 concerning plaintiff’s “behavior toward [defendant’s] independent contractors ….”
Plaintiff also interposed objections on personal knowledge grounds to Marfell’s deposition testimony, offered in support of defense fact statement 4 (that Huckstadt personally observed the problems with plaintiff and also was told about them by others). While it is true that Marfell lacked personal knowledge of Huckstadt’s observations, plainly she was aware of her own complaints to him about plaintiff’s management style. This objection thus lacks merit.
Plaintiff also objected to statements in Huckstadt’s declaration reciting the demographic makeup of defendant’s workforce from 1996 to 2003, and describing defendant as an equal opportunity employer and a “diverse family made up of women and men, young and old, and black, Hispanic, Asian, and white.” Among other objections, plaintiff asserted that Huckstadt’s statements lacked a sufficient evidentiary foundation and personal knowledge. But it is undisputed that Huckstadt was defendant’s founder, board chair, and majority shareholder during the referenced timeframe. From those facts, it is reasonable to infer that Huckstadt had personal knowledge of the demographic makeup of the company’s workforce. (Cf., Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106-1107 [objectionable for declarant to provide a summary calculation of damages].) Plaintiff also objected to Huckstadt’s statements as impermissible opinion, a point I discuss below.
d. Lay opinion testimony
“One of the fundamental theories of the law of evidence is that witnesses must ordinarily testify to facts, not opinions.” (People v. Williams (1992) 3 Cal.App.4th 1326, 1332.) Nevertheless, lay witnesses “are allowed to state opinions in limited situations. (Evid. Code, § 800.)” (Ibid.) Lay opinion testimony “must be rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony.” (People v. Chapple (2006) 138 Cal.App.4th 540, 547.) “For example, testimony that another person was intoxicated [citation] or angry [citation] or driving a motor vehicle at an excessive speed [citation] conveys information to the jury more conveniently and more accurately than would a detailed recital of the underlying facts.” (Ibid.) On the other hand, a court properly sustains objections to “conclusory assertions that [declarants] had been discriminated against, with no specific facts to support them.” (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1119.)
As noted above, plaintiff objected to Huckstadt’s statement that defendant is a diverse workplace on the ground that it is an impermissible expert opinion. I agree that it takes a logical leap to conclude from its bare statistics that the company is an equal opportunity employer with a diverse workforce. (See, e.g., Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 367 [discussing cases in which “the sample was too minuscule to demonstrate a statistically reliable discriminatory pattern”].) Like plaintiff, I also question the significance of the stated fact. (Cf., Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 579 [“racially balanced work force cannot immunize an employer from liability for specific acts of discrimination”].) Nevertheless, the question is not admissibility of the evidence, but its probative value. (Id. at p. 580 [“the District Court was entitled to consider the racial mix of the work force when trying to make the determination as to motivation”].) Thus, in my view, this statement in Huckstadt’s declaration is admissible as weak circumstantial evidence of the company’s lack of racial animus toward plaintiff.
Plaintiff also objected to the second part of defense fact statement 10, which asserted that the racist comments attributed to Jerry Hecker “cannot be tied to plaintiff’s termination.” I agree with plaintiff that the statement is an impermissible legal conclusion concerning causation. (Cf., e.g., Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1119 [conclusory allegations of discrimination are not admissible].) This objection thus is valid, and the statement should not be considered as part of the evidentiary record.
II. Summary Adjudication: General Principles
With the foregoing discussion concerning the evidentiary record in mind, we turn to the substantive legal issues. As a framework for our analysis, we begin by summarizing the legal principles that govern motions for summary adjudication.
A. Overview
Any party to an action may move for summary adjudication. (Code Civ. Proc., § 437c, subd. (f)(1); cf., Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [summary judgment].) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) The statute thus authorizes motions for summary adjudication that “reduce the costs and length of litigation” by limiting the substantive areas of dispute. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1852; see also, Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)
Summary judgment motions serve a similar purpose – “to identify those cases in which there is no factual issue which warrants the time and cost of factfinding by trial.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Thus, the object of both procedures is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) We agree with the dissent that summary judgment can be justified only where the moving party has established the right to judgment as a matter of law. (Dis. opn., at p. 1.) Nevertheless, as the California Supreme Court recognized in Aguilar, “the purpose of the 1992 and 1993 amendments” to section 437c “was to liberalize the granting of motions for summary judgment.” (Aguilar v. Atlantic Richfield Co., at p. 854.)
Beyond their common purposes, summary adjudication motions are “procedurally identical” to summary judgment motions. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.)
B. Movant’s Burden
The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. ... A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, fn. omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.)
C. Appellate Review
On appeal, we review the record de novo. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334 [summary judgment].) We apply the same three-step analysis as the trial court. “First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438; accord, Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1039.)
D. Application to Employment Discrimination Claims
In cases alleging employment discrimination, we analyze the trial court’s decision using a three-step process. (See, e.g., Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 111.)
First, unless conceded by the defendant, we consider whether the plaintiff stated a prima facie case, which raises a presumption of discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 111.)
Next, we assess whether defendant presented admissible evidence of legitimate reasons for firing plaintiff, which dispels the presumption. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 111.) The “employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination.” (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.)
Finally, we evaluate plaintiff’s showing on rebuttal, to see whether it constitutes substantial responsive evidence demonstrating the existence of a material factual dispute as to pretext or discriminatory animus on the part of the employer. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735; see Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 360.) “The exact showing required by an employee to avoid summary judgment in the face of evidence by an employer of a [legitimate] reason for an adverse action is a matter of disagreement.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003; see also, Guz v. Bechtel National, Inc., at pp. 356-357.) “However, ‘the predominant view’ … is that ‘to avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ ” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at pp. 806-807, quoting Hersant, at pp. 1004-1005.) This court adopted that view more than a decade ago, in Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at page 1735. As we explained there, “the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Ibid.) At this third step in the analysis, the plaintiff is required to present more than a bare prima facie showing of discrimination. (Ibid.)
III. Analysis
As relevant to this appeal, the trial court granted the defense motion for summary adjudication on plaintiff’s first two causes of action, for race and gender discrimination. To determine whether the trial court erred in doing so, we apply the three-step process described above, determining: (a) whether plaintiff established a prima facie case of discrimination; (b) whether defendant presented admissible evidence of legitimate reasons for its employment decision; and (c) whether plaintiff proffered substantial rebuttal evidence demonstrating pretext or discriminatory animus.
A. Plaintiff’s Prima Facie Case
Generally speaking, to establish a prima facie case of employment discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was ... performing competently in the position he held, (3) he suffered an adverse employment action, such as termination … and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355 [age discrimination claim]; accord, Jones v. R.J. Donovan Correctional Facility (2007) 152 Cal.App.4th 1367, 1379 [race and gender discrimination].) Ultimately, the “plaintiff in a racial discrimination action has the burden of proving … that the plaintiff’s race was a substantial factor in the adverse employment decision.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 375.)
In plaintiff’s complaint, she first asserts that she is a female African-American, of Nigerian citizenship, and thus a member of a protected class. Her declaration confirms her status as a black female. Concerning the second element, competence in her position as vice president of finance, plaintiff declares that she “received a bonus, a raise, and excellent reviews.” Evidence of the third element, an adverse employment action, likewise appears in plaintiff’s declaration, which states that she was fired in October 2003. As for the final element, circumstances that suggest discriminatory motive on the basis of race or gender, plaintiff first cites these comments addressed to her by Huckstadt: “you are not one of us,” you are not part of the family,” and “I don’t understand people like you.” She also declares that a subordinate, Jerry Hecker, commented to her that “black people are always angry” and that “black people are responsible for all the crimes and drug problems in America,” comments that Huckstadt dismissed cavalierly, saying “that’s just Jerry.” In addition, plaintiff offers Grose’s deposition testimony that Huckstadt had some concerns along “racial lines” about hiring Ron Lawson, an African-American employee. Among her proffered evidence of gender discrimination, plaintiff declares that Huckstadt referred to her as “babes,” “sweetie,” and “honey.”
Plaintiff’s evidence represents an adequate prima facie case of employment discrimination. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851 [defining prima facie showing as “one that is sufficient to support the position of the party in question”].) Defendant thus bore the burden of presenting admissible evidence “of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination.” (Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at pp. 1097-1098; see Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1730.)
B. Defendant’s Evidence
In support of its motion for summary judgment, defendant challenged the second and fourth elements of plaintiff’s prima facie case: her competency in the position and its discriminatory motive. Defendant employed two basic lines of attack: (a) the approach specific to summary judgment motions in employment cases – showing a legitimate reason for its decision, and (b) the standard approach in summary judgment motions – showing plaintiff’s inability to prove a required element of her case.
1. Defendant’s Issue 1: Its proffered reasons for firing plaintiff
Concerning plaintiff’s first cause of action, for race discrimination, defendant frames the issue as follows: “[Defendant] terminated plaintiff for legitimate, non-discriminatory business reasons unrelated to her race.” As to the second cause of action, for gender discrimination, defendant likewise states that it “terminated plaintiff for legitimate, non-discriminatory business reasons unrelated to her sex.”
As to each cause of action, defendant supports its claim of legitimate reasons with eight identical statements of undisputed material fact (numbered 1-8 and 14-21, respectively). We consider each of those eight separate fact statements below, assessing whether plaintiff either interposed a valid evidentiary objection or proffered admissible evidence demonstrating the existence of a disputed material fact.
a. Facts established without dispute by defendant
We conclude that admissible evidence supports defendant’s first eight statements, in whole or in part, with the exception of the fifth. With respect to defendant’s proffered fact number five, there is a material factual dispute about whether plaintiff was counseled concerning her management style, as explained at footnote 1, ante.
Defendant thus established these undisputed facts: (1) In late 2002 and early 2003, Huckstadt began to receive increasing complaints about plaintiff’s behavior toward staff, independent contractors and vendors. (2) Plaintiff interfered with the internal management of defendant’s outside employment claims manager, TALX. (3) Between May and July 2003, Huckstadt continued to receive complaints about plaintiff’s treatment of subordinates and vendors. Morale was low, and some long-term employees were considering leaving the company. (4) Huckstadt observed these problems himself, and others also told him about them. (5) Staff complaints about plaintiff’s treatment continued even after she was relieved of her supervisory duties, which took place in late June or early July 2003. Additionally, plaintiff was disrespectful of Huckstadt. (6) Huckstadt could not justify paying plaintiff a vice-president’s salary when she was no longer managing staff. (7) Some employees found plaintiff’s management style to be overbearing, condescending, or disrespectful. Additionally, her approach, which involved running the company in a more business-like manner, differed from Huckstadt’s preferred “family-oriented” management style.
Defendant established the fact of plaintiff’s interference over plaintiff’s objections, which were properly overruled. However, as to another part of defense fact statement 2 – that the incident created problems for Huckstadt – plaintiff proffered countervailing evidence that Grose, not Huckstadt, had consummated the negotiations with TALX. Thus, that portion of fact statement 2 stands disputed and cannot support the defense motion for summary adjudication.
Plaintiff pointed to evidence that there was no employee morale problem under Grose’s leadership of the company. But as defendant objected in its reply fact statement, that fact is irrelevant. The issue is whether there were employee morale problems and complaints about plaintiff later, under Huckstadt’s leadership.
In response to this first part of defense fact statement 6, plaintiff cites her declaration as proof that she was never told of any “demotion” and that there are no records of any such demotion. That response misses the point, however. In the first place, the statement does not say that plaintiff was demoted; rather, it reflects that plaintiff was relieved of supervisory duties, a point that she does not dispute. Furthermore, plaintiff offers no evidence to counter the statement that there were continuing complaints about her.
On the question of whether she was disrespectful to Huckstadt, plaintiff asserts that she was not, though Huckstadt may have perceived her to be because (1) she was not one of the “intimate female employees” and (2) she was an assertive female peer. But plaintiff does not dispute the specific behavior on her part cited by Huckstadt as disrespectful – walking out of meetings with him in the middle of their discussions. In any event, regardless of whether Huckstadt’s perception of disrespect was warranted, it is germane to the question of whether his decision to fire plaintiff was based on non-discriminatory business reasons.
b. Ineffective countervailing evidence offered by plaintiff
In an attempt to controvert the defense evidence concerning her performance (offered in support of defense facts 1, 3, and 4), plaintiff pointed out that defendant neither documented the cited complaints nor communicated them to her. But the lack of documentation cannot be considered affirmative evidence placing defendant’s proffered fact in dispute. Plaintiff apparently would have us infer that the complaints were non-existent, based on the absence of documentation. But when “reliance is placed on inferences … those inferences [must] be reasonably deducible from evidence….” (O’Neil v. Dake (1985) 169 Cal.App.3d 1038, 1044.) In the words of the California Supreme Court, “even though the court may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.) Under the circumstances presented on this record, the inference suggested by plaintiff here is not reasonable. (See, e.g., Chaffin v. Textron, Inc. (E.D.Cal. 1994) 861 F.Supp. 972, 978 [“court will not infer from lack of documentation that [defendant] is fabricating reasons for [plaintiff’s] termination”]; Merrick v. Farmers Ins. Group (9th Cir. 1990) 892 F.2d 1434, 1438 [refusing to draw inference that defendant’s “reasons for not promoting [plaintiff] lack credibility, because these reasons were not documented until after the commencement of [plaintiff’s] suit”]; Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 811 [no inference of pretext in restructuring plaintiff’s position; the fact “that the written position description does not change does not mean the employer has not restructured the job”].) In this case, there is no evidence that defendant typically memorialized employment records, including complaints. (Cf., Evid. Code, § 1272, subd. (a); see generally Jefferson’s Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2007), Business Records, §§ 4.25-4.28, pp. 132-134.) To the contrary, even plaintiff’s positive performance evaluation from Grose was oral, not written. Nor is there any other evidence bolstering plaintiff’s desired inference. Under these circumstances, the tendered inference is not sufficient to raise a triable issue concerning the existence of complaints about plaintiff.
In response to defense fact statement 7, which declares that Huckstadt could no longer justify paying plaintiff’s salary, plaintiff attempted to dispute that statement by asserting pretext, based on evidence of gender bias. That evidence includes Huckstadt’s references to her as “babes” and “silly little girl,” as well as his history of intimate relationships with other females at the company. This evidence, while relevant to plaintiff’s burden of demonstrating pretext or discriminatory animus, does not operate to place this specific factual assertion in dispute.
Plaintiff also attempted to refute defense fact statement 8, that some employees found plaintiff’s management style to be overbearing, condescending, or disrespectful. To controvert this statement, plaintiff offered her “excellent” performance reviews, her “excellent” relations with the company’s clients, and the fact that Huckstadt was willing to sell the company to her. But as just explained, although this evidence is relevant on the issue of pretext, it does not meet the specific factual assertion in dispute, which concerns plaintiff’s management style.
c. Effect of defendant’s showing
As demonstrated by admissible evidence before the trial court, plaintiff had problems managing employees. Marfell testified that she “had never been so unhappy in [her] whole life with a supervisor,” that she felt “condescended to” and “demeaned,” and that she had “never seen anybody treat a whole group of people with so much disrespect.” Claitor testified that he found plaintiff “overbearing” and that he advised her to “use a lighter hand” with the staff. Phillips testified that plaintiff “was not a very good manager. She did not know how to supervise staff.” When asked to elaborate, Phillips answered: “She wasn’t very respectful of people that she supervised, and speaking from a personal perspective, she really did not appreciate any of the skills that I had.” Moreover, according to Phillips, plaintiff manifested rudeness toward her, by pointing her finger and yelling at her. Even Grose commented adversely on plaintiff’s abilities in “the area of staff management,” noting that “she was still working on polishing some skills, primarily to do with communication.” Grose also testified that plaintiff “would often come off being very abrupt.” Huckstadt’s declaration provides further evidence on the question of plaintiff’s management skills; it also includes evidence of plaintiff’s insubordination or disrespect toward him.
The foregoing constitutes sufficient evidence of defendant’s “reasons, unrelated to … bias,” for firing plaintiff. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) This “explanation of nondiscriminatory reasons was creditable on its face.” (Ibid.) A person’s inability to manage effectively or to get along with coworkers is a legitimate justification for an adverse employment action. (See, e.g., Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156 [defendant presented evidence that plaintiff was “uninspiring as a teacher and uncooperative as a colleague” and also “unable to accept criticism, and hence unlikely to improve”]; Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 800 [plaintiff’s supervisor observed his “overbearing, aggressive and sometimes offensive manner when dealing with other employees”]; Merrick v. Farmers Ins. Group, supra, 892 F.2d at p. 1437 [plaintiff “ ‘did not command the respect necessary for [the division area manager] position, and did not maintain the positive demeanor necessary’ ” for promotion to that position].) The decision to fire an employee on these grounds may be foolish or wrong, but if the employer demonstrates facially nondiscriminatory reasons for the action, it satisfies its initial burden. (Guz v. Bechtel National, Inc., at p. 358.) Such is the case here.
Given this showing, the question then becomes whether plaintiff can rebut the defense evidence by demonstrating pretext or discriminatory animus. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358; Hersant v. Department of Social Services, supra, 57 Cal.App.4th at pp. 1003-1004.) Here, defendant weighed in on this question in its moving papers, by offering factual statements, supported by evidence, in an attempt to demonstrate plaintiff’s inability to rebut its showing of legitimate reasons for firing her. We consider those defense statements now.
2. Defendant’s Issue 2: Its statements concerning lack of pretext
Defendant states: “Plaintiff cannot produce substantial responsive evidence of pretext regarding her claim for race discrimination” (her first cause of action) or “sex discrimination” (her second cause of action). To support the lack of evidence of race discrimination, defendant presents five separate fact statements (numbered 9-13); concerning plaintiff’s sex discrimination claim, it offers six statements (numbered 22-27). Our conclusions about each of those statements are summarized below.
a. Facts established without dispute by defendant
Concerning defendant’s showing that it was not motivated by racial discrimination, these statements by defendant were supported by admissible evidence: (9) To plaintiff’s knowledge, Huckstadt never made any overtly racial comments. (10) Inappropriate racial comments ascribed to plaintiff’s subordinate, Jerry Hecker, were made more than a year before plaintiff reported them to Huckstadt. (11) Huckstadt’s comments about plaintiff’s failure to become part of the “family” were not race-based, as demonstrated by circumstantial evidence from Claitor’s deposition testimony and from Huckstadt’s declaration. (12) Defendant is a racially diverse organization, based on weak but admissible statistical evidence in Huckstadt’s declaration. (13) Huckstadt offered plaintiff a continuing role with the company as an independent contractor, which she declined.
We reject plaintiff’s objections characterizing this statement and its supporting evidence as vague, conclusory, speculative, and an impermissible legal opinion. We note, furthermore, that plaintiff herself confirmed that same statement in deposition testimony, to which no objection was made.
Plaintiff’s relevance objection to this statement is not well-taken. Huckstadt’s attempt to fashion a continuing role for her with the company tends to prove the absence of racial animus toward her. (Cf., Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 809 [where the same actor both hired and fired the plaintiff within a short time period, “ ‘a strong inference arises that there was no discriminatory motive’ ”].)
In connection with plaintiff’s gender discrimination claim, these defense statements are supported by admissible evidence: (22) “The only alleged gender-based comments Huckstadt made in plaintiff’s presence were to refer to her as ‘babe, honey, and sweetie.’ She never told him she found these names offensive.” (23) “Huckstadt referred to males and females as ‘babe’ or ‘babes.’ ” (24) “According to plaintiff, Huckstadt’s demeanor was difficult for both males and females.” (25) Defendant “maintains a very diverse workforce in terms of gender.” (26) “Huckstadt appointed a woman, Sue Grose as CEO and President when he went into semi-retirement.” (27) Huckstadt offered plaintiff a position with the company as an independent contractor, but she declined it.
Plaintiff objected that she did not testify as to Huckstadt’s “global demeanor towards males and females – as opposed to one incident [involving TALX], which may or may not be indicative of such global behavior.” But she did testify more generally that at least one male (Claitor) and one female (Geri Lesko) had expressed concerns to her about working with Huckstadt. In that testimony, plaintiff stated that Claitor “didn’t know in terms of consistency what to expect from John [Huckstadt] daily in terms of John’s mood, in terms of John’s demeanor, or in terms of what John was going to say or do.” Both the quoted testimony, which relates to Huckstadt’s general effect on employees, and the evidence involving TALX, which relates to a specific incident, tend to show that Huckstadt’s demeanor generally was difficult for both genders. The evidence thus supports the material fact statement.
b. Effect of defendant’s showing
The foregoing facts support defendant’s claim that plaintiff was unable to “produce substantial responsive evidence of pretext” concerning race discrimination or gender discrimination. For her part, however, plaintiff offered rebuttal evidence in an attempt to controvert some of the foregoing statements. We consider that evidence now.
C. Plaintiff’s Rebuttal
As discussed above, in the face of defendant’s evidence, the burden shifted to plaintiff “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.)
1. Plaintiff’s evidentiary claims
Plaintiff advances three claims of error concerning evidence on which she relied. (a) First, plaintiff relied in her rebuttal on statements from Grose’s deposition, which plaintiff characterizes as party admissions, attributable to defendant, that demonstrate gender bias on Huckstadt’s part. Plaintiff contends that the trial court erred in implicitly rejecting that characterization. (b) Plaintiff similarly relied on comments attributed by Grose to Huckstadt, which she describes as racially discriminatory. Plaintiff claims that the trial court erred in treating those comments as isolated, insubstantial, or “stray” remarks. (c) In addition, in response to defendant’s evidence, plaintiff asserts that the trial court erred by ignoring claimed inconsistencies in Huckstadt’s testimony. We consider and reject each of those points in turn.
a. Party Admissions
The statements that plaintiff offers as party admissions of gender discrimination concern the company’s so-called “ ‘harem culture’ ” and Huckstadt’s claimed treatment of women in the workplace as sexual stereotypes. The statements, reflected in Grose’s later deposition testimony, were made by Grose to plaintiff when both women were employed by defendant.
In plaintiff’s view, those statements by Grose constitute party admissions providing direct and circumstantial evidence of gender bias. As plaintiff points out, the statements were made while Grose was defendant’s President and Chief Executive Officer. (See, e.g., 1 Witkin, Cal. Evidence (4th ed., 2000) Hearsay, §119, p. 826 [statements “must have been made during the existence of the [agency] relationship”].) Furthermore, according to plaintiff, they were based on Grose’s own observations of Huckstadt.
Defendant disagrees. First, as to the timing of the statements, defendant observes that Grose’s deposition testimony took place “nearly two years after Grose left the company….” (See Markley v. Beagle (1967) 66 Cal.2d 951, 957 [statement made by former employee was not admissible].) Furthermore, on the question of the content of the statements at issue, defendant argues that Grose did not have express or implied authority “to gossip, speculate or opine to [plaintiff] about the inactive company chairman’s past attitudes or relationships….” (See O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570 [admissibility depends on “the nature of the employee’s usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement”].) Finally, defendant urges, the statements are inadmissible because they are not “helpful to the determination of a fact in issue, namely, why Huckstadt terminated Lawal.” (Cf., Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [statements did not constitute party admissions, where declarants were not involved in the challenged employment decision not to rehire the plaintiff].)
We need not decide whether Grose’s comments qualify as party admissions under applicable principles of agency law. In our view, they are inadmissible for the more fundamental reason cited by defendant – they are simply irrelevant to the issues raised by defendant’s motion, which concern only the justification for defendant’s decision to fire plaintiff. (See Evid. Code, § 210; People v. Jablonski, supra, 37 Cal.4th at p. 821.) We offer two reasons for that view.
First, the specific incidents of sexual favoritism reflected in Grose’s statements took place in 1995 or earlier, long before plaintiff was even hired. Those remote incidents, which involved Huckstadt’s paramours Miriam and Jean, do not tend to prove any current gender bias against plaintiff on Huckstadt’s part that motivated his decision to fire her. (See, e.g., Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at pp. 1734-1735 [evidence of other incidents suggestive of age discrimination were not “material” to the determinative issue on summary judgment, whether plaintiff “had raised a triable issue of fact” overcoming defendant’s showing of legitimate reasons for its action against her]; cf., Horsford v. Board Of Trustees Of California State University, supra, 132 Cal.App.4th at p. 377 [on substantial evidence review following jury verdict for plaintiffs, “evidence of overall attitude and actions was relevant” to question of discriminatory motive].)
Second, evidence of favoritism is not necessarily relevant to a discrimination claim. (See, e.g., Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1630, 1631 [no claim of sexual harassment or gender discrimination exists where “there is no conduct other than favoritism toward a paramour”].) On the other hand, however, “evidence of a romantic relationship between a supervisor and a subordinate might well be relevant in establishing liability” for sexual harassment under theories of quid pro quo harassmentor hostile work environment. (Ibid.) But plaintiff does not advance a claim of sexual harassment here. Nor would the evidence support such a theory, since “an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” (Miller v. Department of Corrections, supra, 36 Cal.4th at p. 462; see also, e.g., Jones v. R.J. Donovan Correctional Facility, supra, 152 Cal.App.4th at p. 1377.)
Contrary to plaintiff’s assertion, her favoritism argument is not aided by the California Supreme Court’s recent decision in Miller v. Department of Corrections, supra, 36 Cal.4th 446. In reversing the defense summary judgment in Miller, the California Supreme Court emphasized the evidence of a hostile work environment created by the warden’s widespread sexual favoritism. (Id. at pp. 466-472.) The court made only glancing references to discrimination. (See id. at pp. 463-470.) And the California Supreme Court has previously recognized a distinction between harassment and discrimination under FEHA. (See Reno v. Baird (1998) 18 Cal.4th 640, 645-647.) “ ‘Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.’ ” (Id. at p. 646.) “ ‘Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties.’ ” (Ibid.; but see Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278 [both the federal and state “statutory schemes regard the prohibition against sexual harassment as part and parcel of the proscription against sexual discrimination”].)
Miller’s focus on harassment rather than discrimination distinguishes that case from the one before us. Here, plaintiff has not argued that favoritism constituted sexual harassment nor has she claimed that it created a hostile work environment. She asserts only that it evidences gender discrimination. Miller offers no legal support for that assertion. Under the circumstances presented here, the proffered evidence of Huckstadt’s sexual favoritism toward other employees is simply irrelevant on the pivotal question of why plaintiff was fired.
b. Stray Remarks
Plaintiff takes issue with the trial court’s statement, contained in its corrected order, that Huckstadt’s comments about race and gender were merely “ ‘stray remarks.’ ”
In plaintiff’s view, Huckstadt’s comments went beyond just stray remarks; rather, when taken together with other evidence, they are persuasive proof of his deep-seated discriminatory attitudes. In support of that view, plaintiff cites evidence that, she says, “could evidence a discriminatory animus.” Plaintiff also argues against the underlying validity of the “ ‘stray remarks doctrine’ ” itself.
Concerning plaintiff’s evidence, much of it relates to events prior to her tenure with the company. As explained above, such remote evidence lacks relevance on the pivotal question here, the legitimacy of defendant’s reasons for firing plaintiff. Furthermore, plaintiff views the evidence through the wrong prism. The question is not whether the proffered facts “could evidence discriminatory animus.” Instead, the question is whether plaintiff raised “a rational inference that intentional discrimination occurred.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357, italics added.) Plaintiff’s discrimination claims “cannot survive” summary adjudication “unless the evidence in the summary judgment record places [defendant’s] creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference that, in fact, [defendant] acted for discriminatory purposes.” (Id. at p. 362.) As explained below, plaintiff’s admissible evidence fails to do so here.
As for the so-called “stray remarks” doctrine itself, which is said to be embodied in case authority, “all that these cases really stand for is the common-sense proposition that a slur is not in and of itself proof of actionable discrimination, even if repeated. The remark taken to be a slur may have been innocent and misunderstood; or it may have had no consequence, either because it did not reflect the thinking of the people with decision-making authority or because it did not motivate even the person uttering it to act on it. It thus may fall far short of establishing a prima facie case. Even so, it may be relevant evidence, with greater or less probative value depending on the precise character of the remark.” (Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402.) More simply put: “Such ‘stray’ remarks do not establish discrimination.” (Gibbs v. Consolidated Services, supra, 111 Cal.App.4th at p. 801; cf., Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at p. 1101 [decision-maker’s statements could not “be characterized – as a matter of law – as ‘stray’ remarks, unconnected with the process of retention and termination”].) That is particularly so where, as here, the remarks claimed to be actionable are ambiguous.
c. Inconsistencies
As both parties agree, contradictions in an employer’s explanation for its action may give rise to an inference that the reasons are “unworthy of credence.” (Cucuzza v. City of Santa Clara, supra, 104 Cal.App.4th at p. 1038, internal quotation marks omitted; see Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112, fn. 11 [“general correlation exists between pretext and discrimination”].)
According to plaintiff, this record contains “numerous contradictions,” tending to show that defendant’s reasons for firing plaintiff were “pretextual,” which “the trial court erroneously ignored.” Plaintiff offers nine examples of claimed contradictions. None demonstrates error on the trial court’s part.
Plaintiff first cites the absence of documentation of complaints about her. As explained above, however, the lack of documentation alone does not controvert the existence of complaints about plaintiff, particularly given the absence of evidence that defendant typically memorialized employment records. (See, e.g., Chaffin v. Textron, Inc., supra, 861 F.Supp. at p. 978.) Thus, to the extent that the trial court ignored the absence of documentation, it did not err in doing so.
Plaintiff’s second, third, and fourth examples juxtapose two sets of circumstances that she claims are inconsistent. On the one hand, plaintiff cites the June 2003 “laudatory and lucrative” offer to her to continue her employment with defendant. On the other hand, however, plaintiff observes, she remained the subject of employee complaints, and she was supposedly demoted and relieved of supervisory duties. In our view, however, those two sets of circumstances are not necessarily inconsistent, particularly given Huckstadt’s explanation that the break-down in negotiations over the modified employment terms occurred following the incident involving Paul Fountain of TALX.
Plaintiff’s fifth example similarly juxtaposes circumstances that she finds contradictory: Huckstadt’s willingness to sell his shares to her and Claitor, despite his concern over her management style. Again, however, we do not view the two circumstances as inherently inconsistent. In any event, to the extent that they may be at odds, any inconsistency does not render “the unlawful motive … more likely than defendant’s proffered explanation.” (Cucuzza v. City of Santa Clara, supra, 104 Cal.App.4th at p. 1038.)
Plaintiff’s sixth, seventh, and eighth examples purport to demonstrate contradictions between defendant’s evidence (principally Huckstadt’s declaration) and plaintiff’s evidence (principally Grose’s deposition testimony), concerning these specific factual issues: whether Huckstadt even attended a particular meeting where he claimed to reprimand plaintiff; whether Huckstadt mentioned complaints about plaintiff to Grose; and whether it was Huckstadt or Grose who negotiated the contract between defendant and TALX. In the first place, not all of plaintiff’s examples demonstrate actual contradictions. For instance, as to plaintiff’s seventh example, Grose did not deny that Huckstadt had informed her of complaints about plaintiff, as plaintiff asserts; rather, in the portion of her deposition testimony cited by plaintiff, she said only that she could not “recall hearing complaints.” And in another part of her deposition testimony, Grose answered affirmatively when asked whether any employee had ever complained to her about plaintiff’s behavior, saying: “Yes. Complain is a tricky word. Comment, concern, express concerns, but, yes.” She further testified that she had communicated those comments to Huckstadt. More importantly, none of these three examples involves a material fact issue. For that reason, any contradictions in the evidence do not support plaintiff’s challenge to the grant of summary adjudication.
Plaintiff’s ninth example likewise purports to show a factual dispute between Huckstadt’s declaration and Grose’s deposition testimony. At issue is Huckstadt’s role in the decision to hire plaintiff. Huckstadt declared: “Sue Grose hired Jim Claitor in late 2000 as VP of Marketing and hired Tutu Lawal in December 2001 as Vice President of Finance and Member Services.” Asked to comment on that statement at her deposition, Grose testified that she and Huckstadt “participated equally” in hiring Claitor; as to plaintiff’s hire, Huckstadt “was less involved but he was still somewhat involved in that process.” Grose also testified that Huckstadt “did not object” when Grose decided to hire plaintiff. There is no inherent contradiction between Huckstadt’s declaration that Grose hired the two vice presidents and Grose’s testimony that Huckstadt participated in the process. Thus, there is no dispute concerning the material fact that Huckstadt participated in the decision to hire plaintiff.
Our conclusions concerning plaintiff’s evidentiary claims may be summarized as follows: (a) The trial court properly refused to consider Grose’s comments concerning Huckstadt’s treatment of women in the workplace. Regardless of whether those comments qualify as party admissions, they are inadmissible as irrelevant to the issue raised by defendant’s motion, its justification for firing plaintiff. (b) The trial court properly refused to consider Huckstadt’s stray remarks, as they do not serve to establish discrimination. (c) Plaintiff has not established that the trial court erred by ignoring any contradictions in the critical evidence.
2. Plaintiff’s evidence: race discrimination claim
Plaintiff takes a three-pronged approach in her attempt to raise a triable issue about Huckstadt’s racial animus.
a. Huckstadt’s comments to plaintiff
The first prong of plaintiff’s approach relies on comments made to her by Huckstadt to the effect that she did not belong. Plaintiff declared: “After Mr. Huckstadt returned to running the company, he exhibited an overt hostility to me and on different occasions, including when he fired me, told me to my face that ‘you are not one of us,’ ‘you are not part of the family,’ and ‘I don’t understand people like you.’ ”
Defendant objected to plaintiff’s assertion of Huckstadt’s “overt hostility” as vague and an impermissible opinion. We are not persuaded of the validity of defendant’s objection. According to longstanding authority, it is proper for “a witness to testify to the spirit or tenor of voices that he heard” as denoting “ ‘anger.’ ” (People v. Deacon (1953) 117 Cal.App.2d 206, 210.) “How ‘anger’ could be evidenced other than by characterizing it as such is difficult to see. Anger is the fact, not the voices that evidence the anger. Every attempt at analyzing the voices heard would reproduce the same objection here made, if it were a good one.” (Ibid.) Here, plaintiff’s declaration reports specific statements made by Huckstadt that could be understood as hostile. Those statements are “rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony.” (People v. Chapple, supra, 138 Cal.App.4th at p. 547.) Based on this authority, plaintiff’s statement that Huckstadt was hostile could properly be admitted over defense objection.
Even accepting all of those statements as part of the evidentiary record, however, they do not give rise to a rational inference of racial bias. Without some additional evidence, “it is mere speculation to suspect … discrimination led to defendant’s allegedly hostile conduct. Speculation is insufficient.” (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1118.) Apart from plaintiff’s own perceptions, there is no indication that Huckstadt’s ambiguous remarks related to plaintiff’s race rather than her management style, her inability to get along, or her introduction of unpopular management reforms. As plaintiff herself declared, in instituting those reforms, she was running “a risk” that some employees “were going to be upset” with her. She likewise declared: “I was called upon … to make some tough managerial decisions, which I assume did not always endear me to those whom I supervised or dealt with.”
b. Hecker’s remarks to plaintiff
The second prong of plaintiff’s rebuttal relies on racist remarks by a subordinate, Jerry Hecker. In her separate statement below, plaintiff asserted that Huckstadt “affirmed and ratified the racist remarks … by dismissing them as ‘That is just Jerry.’ ” (Cf., Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 109, fn. 9, and cases cited therein.) But as plaintiff admitted, the offensive remarks had been made more than a year before, when plaintiff first began working for defendant. According to his deposition testimony, Huckstadt did not even recall plaintiff reporting any such comments by Hecker. Plaintiff testified that Huckstadt’s remark – “That’s just Jerry” – was addressed not only to the racist remarks but also to her perception of Hecker’s insubordination and rudeness. Plaintiff did not ask Huckstadt or Grose to discipline Hecker for the remarks. Furthermore, plaintiff herself did not reprimand Hecker for those comments when she gave him a performance review. In this context, Hecker’s racist remarks cannot be attributed either to Huckstadt or to the company and thus are not proof of racial animus in the decision to fire plaintiff.
c. Huckstadt’s general attitude toward racial minorities
In the third and final prong of her rebuttal on race discrimination, plaintiff asserts that Huckstadt “overtly expressed his animus towards Blacks to Ms. Grose – both globally and in connection with Ron Lawson,” another employee of defendant. Plaintiff supports that assertion with her attorney’s declaration, which cites Grose’s deposition testimony. Plaintiff lifts two specific comments from that testimony: that Huckstadt had some concerns along “racial lines” about hiring Lawson, and that it “was not unusual for John [Huckstadt] to make comments about … Jews or blacks or other groups….”
As defendant observes in its objections, however, those comments are taken out of context. (See Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 814.) With respect to the first comment, Grose testified that Huckstadt not only supported Lawson’s hiring but – at least initially – was enthusiastic about it. As to the second remark, Grose elaborated that Huckstadt “tended to view various behaviors as being more related to backgrounds.” Standing alone, that tendency does not suggest discriminatory animus, and there is no evidence that Huckstadt’s statements about “Jews or blacks or other groups” were derogatory or racist. (See Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 71 [declarant “was not asked to and did not explain the reason for his testimony, making appellant’s assertion that it reflects discriminatory intent purely speculative”].) Furthermore, the comments were remote in time, having been made long before plaintiff was hired, much less fired.
More to the point, Grose testified that Huckstadt did not object to hiring plaintiff. If Huckstadt’s decision to fire plaintiff was based on her race, his acquiescence in the decision to hire her would make no sense, nor would his offer to her of a continuing role with company as an outside consultant. (See Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 809.)
To sum up, plaintiff’s rebuttal evidence on her racial discrimination claim does not give rise to “a rational inference that intentional discrimination occurred.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) Her perception of racial discrimination “has no factual or evidentiary support.” (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1122.)
3. Plaintiff’s evidence: gender discrimination claim
With respect to her gender discrimination claim, plaintiff’s rebuttal evidence falls into two broad categories, (a) Huckstadt’s treatment of women in general, and (b) comments by him directed specifically to plaintiff.
a. Huckstadt’s general treatment of women
As to the first category, plaintiff proffered evidence of Huckstadt’s sexual intimacy with a number of female employees. She also presented evidence that he had unsuccessfully propositioned Grose shortly after hiring her in 1995. In addition, plaintiff offered evidence that Huckstadt discussed women in sexual terms, reducing them to sexual stereotypes, and that he also had “problems dealing with assertive women.” All of this evidence was based on statements by Grose.
Defendant interposed specific evidentiary objections to plaintiff’s use of statements from Grose’s deposition testimony, offered in support of plaintiff’s allegation that Huckstadt routinely subjected women to sexual stereotyping. Concerning Grose’s stated “perception” that Huckstadt exhibited gender bias against women, defendant objected on the ground that “Grose’s opinions” were “incompetent and inadmissible.” As to Grose’s testimony that Huckstadt had discussed unnamed female nonprofit board members “in sexual terms,” defendant objected to “Huckstadt’s alleged statements regarding various unidentified women made at unspecified times” as being “not only incompetent and lacking in evidentiary value, but also irrelevant in that it does not tend to prove or disprove any disputed fact of consequence to the determination of this action, which involves only the termination of Ms. Lawal’s employment.”
As indicated in our discussion of plaintiff’s evidentiary claims in connection with her rebuttal evidence, we agree with defendant that the proffered evidence is not relevant and should be rejected.
First, Grose’s “perception” of Huckstadt’s behavior toward women as biased constitutes impermissible lay opinion on her part on the ultimate issue of discrimination. (See Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1119 [trial court properly rejected declarants’ conclusory statements that defendant discriminated against them]; Hester v. BIC Corp. (2nd Cir. 2000) 225 F.3d 178, 181, 185 [trial court erred in admitting testimony of four witnesses that supervisor’s “condescension” toward plaintiff was “attributable to [her] race”].) The same is true of Grose’s impression that Huckstadt could not cope with assertive women.
Second, Grose’s testimony that Huckstadt generally discussed women in sexual terms is irrelevant to the question of defendant’s reasons for firing plaintiff. In Martin v. Lockheed, this court summarized the evidence offered by the plaintiff there, which she characterized as indicative of a general policy on the defendant’s part of age discrimination. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at pp. 1733-1734.) That evidence included two management memoranda apparently reflecting a preference for younger workers, and several remarks made long before to the plaintiff concerning her age. After reviewing that evidence, we stated: “Whether or not a trier of fact would find any of this to be persuasive evidence on issues to which it was germane, it is apparent that none of it is material to the issue which was before the trial court and thus is before us, which is whether Martin had raised a triable issue of fact material to Lockheed’s showing that on a specific occasion in early 1991 Martin was [subjected to an adverse employment decision based on] her age.” (Id. at pp. 1734-1735; see also, e.g., Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1319 [“there must be a ‘causal connection’ between the employee’s protected status and the adverse employment decision”].) Similarly, in this case, the question is not whether Huckstadt had a general problem with women; rather the issue is whether plaintiff raised a triable issue that gender played a role in the decision to fire her.
Third, evidence of Huckstadt’s intimate relationships with female employees likewise is irrelevant. It has long been the rule in sexual harassment cases that “one who is personally subjected to offensive remarks and touchings can establish a hostile work environment by showing that harassment existed in the place of employment.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610-611.) “However, one who is not personally subjected to such remarks or touchings must establish that she personally witnessed the harassing conduct and that it was in her immediate work environment.” (Id. at p. 611.) In this case, it is undisputed that plaintiff was never the target of Huckstadt’s offense conduct. As she stated in her declaration, Huckstadt “had not asked me to engage in sexual relations, as he did Ms. Grose (nor would I have even entertained the thought).” Nor did plaintiff personally witness such conduct. To the contrary, Huckstadt’s sexual liaisons with two former employees – Miriam and Jean – took place long before plaintiff came to work for defendant. Likewise, Huckstadt’s single sexual overture to Grose took place more than five years prior to plaintiff’s employment with the company, shortly after Grose was hired in 1995.
In sum, plaintiff’s proffered evidence concerning Huckstadt’s general treatment of women is not relevant and thus not admissible on the issue of gender discrimination.
b. Huckstadt’s comments to plaintiff
In comments to made directly to plaintiff, Huckstadt called her “babes,” “honey,” and “sweetie,” and a “silly little girl.” According to plaintiff, Huckstadt also subjected her to “a campaign of profane abuse”; for example, he accused her of giving “fucking dumb stupid directions” to a subordinate, his ex-wife Terri Oakley.
Turning first to the names by which Huckstadt addressed plaintiff, she did not dispute the fact that he called both males and females “babe” or “babes,” which suggests the lack of gender bias. As plaintiff observes, there is case law holding that “the application of discriminatory policies to individuals cannot be justified by their even-handed effects on women and men….” (Brown v. Henderson (2nd Cir. 2001) 257 F.3d 246, 253.) However, as that authority further explains, “in the absence of evidence suggesting that a plaintiff’s sex was relevant, the fact that both male and female employees are treated similarly, if badly, does give rise to the inference that their mistreatment shared a common cause that was unrelated to their sex.” (Id. at p. 254.) Under the circumstances presented here, use of the terms “babe” or “babes” is not evidence of gender bias. The evidence supports a similar inference concerning Huckstadt’s use of the terms “honey” or “sweetie.” In deposition testimony about his use of the terms “babe” or “babes” to both men and women as a team-building device, Huckstadt stated: “I sometimes will call a female ‘Hon.’ ” Though he did not recall doing so, Huckstadt admitted that he “may have called [plaintiff] ‘Hon,’ but that would be very rare.” He testified that “sweetie” was not a word he used, however. Given this context, Huckstadt’s use of any of these terms – “babe,” “sweetie,” or “honey” – does not give rise to a reasonable inference of gender discrimination. That conclusion is bolstered by the undisputed evidence that plaintiff never told Huckstadt that she found the terms offensive.
As for the “silly little girl” remark, defendant objected on hearsay grounds to plaintiff’s reference to that statement in her declaration. That objection lacks merit, however, since the statement patently is not offered to prove the proof of the matter asserted, but rather is offered for its effect on the listener. (Cf., People v. Jablonski, supra, 37 Cal.4th at p. 820.) Though admissible, the statement does not give rise to a reasonable inference of gender discrimination. As described in plaintiff’s declaration, the remark was part of an incident that took place in May 2003, at a dinner with defendant’s clients, in which Huckstadt threw a wine cork at plaintiff. There is no evidence that the remark was ever repeated. That isolated incident took place months before plaintiff’s firing, and there is no evidence of a nexus between the remark and defendant’s termination of plaintiff’s employment. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at pp. 1734-1735; Mixon v. Fair Employment & Housing Com., supra, 192 Cal.App.3d at p. 1319.) The remark thus does not constitute substantial evidence of gender discrimination. (Gibbs v. Consolidated Services, supra, 111 Cal.App.4th at p. 801; cf., Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 610 [for harassment, conduct “cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature”].)
Concerning the asserted “profane abuse,” there is no evidence that Huckstadt singled out plaintiff for this treatment. To the contrary, it appears that Huckstadt treated male employees – including Claitor – in the same way. This is not suggestive of gender discrimination. (See Brown v. Henderson, supra, 257 F.3d at p. 254; cf., Chiapuzio v. BLT Operating Corp. (D.Wyo. 1993) 826 F.Supp. 1334, 1337 [supervisor was “an ‘equal-opportunity’ harasser whose remarks were gender-driven”]; Lyle v. Warner Bros. Television Productions, supra, 38 Cal.4th at p. 276 [“sexually coarse and vulgar language was used ... with both male and female participants present”].)
As explained above, in the face of defendant’s showing, plaintiff was required to produce “evidence supporting a rational inference that intentional discrimination … was the true cause of the employer’s actions.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361 [FEHA case].) “The mere fact [that one party] is a female and [the other is] a male does not give rise to the inference that [the defendant’s] alleged aggressive conduct was motivated by a desire to discriminate on the basis of gender. Without some evidence to make such an inference a reasonable one, it is mere speculation to suspect gender discrimination led to defendant’s allegedly hostile conduct. Speculation is insufficient.” (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1118; see also, e.g., Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1735 [plaintiff “must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual”]; Gibbs v. Consolidated Services, supra, 111 Cal.App.4th at p. 799 [finding “no evidence that would give rise to an inference of unlawful discrimination”].)
In the context of this record, which includes the undisputed fact that defendant offered plaintiff a continuing role with the company as an outside consultant, plaintiff’s evidence does not support a rational inference of intentional discrimination on the basis of her gender.
SUMMARY OF CONCLUSIONS
Plaintiff presented a prima facie case of employment discrimination, thereby raising a presumption of discrimination. In its moving papers, defendant offered admissible evidence of its legitimate reasons for firing plaintiff, unrelated to race or gender bias, including her failure to manage effectively and her inability to get along with her coworkers. Defendant’s evidence thus dispelled the presumption of discrimination and shifted the burden to plaintiff to raise a triable issue of pretext or discriminatory animus. In her rebuttal, plaintiff failed to carry that burden. At best, plaintiff’s evidence raised only a weak suspicion that discrimination played a part in her termination. In the words of our state’s high court: “Under these circumstances we conclude, as a matter of law, that [plaintiff] has failed to point to evidence raising a triable issue that [defendant’s] proffered reasons for its actions were a pretext for prohibited … discrimination. [Defendant] is therefore entitled to summary judgment on this claim.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 370.)
DISPOSITION
The judgment is affirmed. Defendant shall have costs on appeal.
Mihara, J., Concurring in the Judgment.
Although I agree with the lead opinion’s conclusion that the superior court did not err in granting the defense motion for summary adjudication, I cannot concur in the lead opinion because it addresses issues regarding Lawal’s evidentiary objections that she has not raised or argued on appeal.
Lawal’s action alleged numerous causes of action, but only two are at issue in her appeal. Her appeal challenges the summary adjudication of her race and gender discrimination causes of action in favor of the defense. All of her other causes of action were either dismissed or dependent on the success of these two causes of action. The superior court’s order granting summary adjudication was based on its conclusion that the defense had “established a legitimate, nondiscriminatory reason for terminating plaintiff, namely that she was unable to effectively manage and work compatibly with defendant’s employees” and Lawal had failed to produce substantial evidence that this nondiscriminatory reason was a pretext for discrimination.
The summary adjudication motion was based in part on Huckstadt’s declaration. Lawal filed evidentiary objections to certain portions of Huckstadt’s declaration. In her written statement of her evidentiary objections, she requested a ruling on her objections. At the hearing on the summary adjudication motion, Lawal’s trial counsel again explicitly “request[ed] a ruling on the objections.” The superior court did not rule on the objections at the hearing. Nor did the superior court’s written order contain rulings on most of Lawal’s evidentiary objections. “[O]ther than the ruling below, the Court declines to render formal rulings on the evidentiary objections, but has disregarded all inadmissible and incompetent evidence in ruling herein. See Biljac Assoc. v. First Interstate Bank of Oregon (1990) 218 Cal.App.3d 1410.” The superior court overruled Lawal’s hearsay objection to one paragraph of Huckstadt’s declaration.
On appeal, Lawal does not renew all of her many evidentiary objections. Instead, her appellate briefing devotes very little attention to her evidentiary objections. On the last two-and-a-half pages of her 37-page opening brief, Lawal renews just two of the evidentiary objections that she interposed to portions of the Huckstadt declaration.
Lawal does not substantively argue the evidentiary issues addressed in the lead opinion. Lawal devotes two paragraphs of her brief argument on the evidentiary issues to asserting that she preserved her objections. In Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac), the objecting party requested a ruling on its objections, but the superior court refused to rule. The Court of Appeal found no error in the superior court’s failure to rule on the objections, and it addressed the merits of the specific objections that the objecting party had made below and had renewed and adequately argued on appeal. (Biljac, at pp. 1419-1420, 1424.)
In the wake of Biljac, three issues have continued to trouble appellate courts. The first question is whether Biljac was correct in holding that the superior court did not err in refusing to rule on evidentiary objections. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 238 (Sambrano) [Fourth District holds that refusal to rule is error].) The second question is what steps an objecting party must take in the superior court to preserve its evidentiary objections.[1] (See Sambrano, at p. 237 [objecting party must request ruling at hearing]; Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 801, fn. 1; see also Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1 [written evidentiary objections deemed waived if superior court fails to rule on them].) The third question is whether the appellate court should itself rule on properly preserved evidentiary objections, or should reverse and remand to the superior court for it to rule on the objections. (See Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 579, fn. 7.)
This case does not present any substantial questions as to these three issues. Whether or not it was error for the superior court to refuse to rule on her evidentiary objections, Lawal appears to have adequately preserved her evidentiary objections for appeal by orally requesting a ruling at the hearing on the motion. (Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 237.) She renews just a couple of these objections on appeal, and she has submitted less than adequate argument in support of even these ones. This court may wish in the future to consider whether properly preserved evidentiary objections that were not ruled on by the superior court should be ruled on in the first instance by this court or should be remanded to the superior court for rulings. But Lawal’s inadequate briefing and the minor nature of her renewed evidentiary objections make this case an inappropriate vehicle for consideration of that issue. And this case raises no other important issues regarding the validity of Biljac.
Although the dissent acknowledges that Code of Civil Procedure section 437c, the statute governing summary judgment proceedings, declares that “[e]videntiary objections not made at the hearing shall be deemed waived[,]” the dissent maintains that it is not necessary to make an evidentiary objection at the hearing in order to preserve the objection for appellate review. (Code Civ. Proc., § 437c, subd. (b)(5).) The dissent does not provide any authority for the proposition that this court may disregard the Legislature’s mandate.
Presumably it was not intended that parties who have filed written objections prior to the hearing must then go through the ritual of standing before the court and orally reiterating them one by one. Certainly the drafters of the related rule of court appear to believe that written objections are in themselves sufficient. (See Cal. Rules of Court, rule 3.1352 [party may “[s]ubmit objections in writing under rule 3.1354” or arrange to have a court reporter at the hearing]; see id., rule 3.1354 [specifying form of written objection and deadline for filing].)
This court has never substantively addressed any of the issues arising from Biljac. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 864 [Sixth District, relying on Biljac]; Browne v. Turner Const. Co. (2005) 127 Cal.App.4th 1334, 1348, fn. 6 [Sixth District, noting split and declining to address issue]; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 104, fn. 8 [Sixth District, citing Biljac and not addressing issue].)
Most or all of the Legislature’s major innovations in summary judgment procedures over the past two or three decades may be viewed as an attempt to force summary judgment into a linear process more nearly resembling that of a trial. The Legislature apparently visualized a kind of dialectic back-and-forth forcing each party to explicitly link its evidence and argument to the issues raised by the pleadings. If anyone believes this experiment has succeeded, it is news to me. Far from exposing the substantive core of the case to the analytical sunshine, the statutory innovations have operated mainly to hide the real issues in a subterranean labyrinth which, it is often fair to say, none of the participants succeed in fully navigating.
Lawal’s appellate evidentiary objections are readily dispatched. She contends, in a single paragraph, that “statistical evidence” offered by the defense in paragraph 4 of Huckstadt’s declaration was irrelevant. Huckstadt declared that he was the CEO of defendant, which he had founded in 1982. He identified the racial and gender makeup of defendant’s workforce between 1996 and 2003, and he asserted that he had personal knowledge of these facts. Lawal’s appellate argument on this point is utterly lacking. She cites one case in which a court held that a plaintiff’s reliance on statistical evidence alone was not adequate to defeat a defense summary judgment motion. That hardly demonstrates that such evidence is irrelevant or that it cannot be used by the defense as a small part of its evidence that it harbored no racial or gender-based animus. It is not clear what Lawal intends to be the import of her other case citation. In any event, neither of the cases she cites establishes that statistical evidence of a racially-diverse and gender-diverse workforce is irrelevant to the question of whether the employer had a racial or gender-based animus. She has failed to establish that her objection to the “statistical evidence” should have been sustained.
The only evidentiary objections that the dissent considers are those made by defendants.
It has also been suggested that the parties may lodge objections under Evidence Code section 352, which empowers the court to exclude evidence it finds unduly prejudicial in view of its limited probative value. Rulings on such objections are peculiarly entrusted to the trial court’s discretion, but that is a rule of necessity having everything to do with the exigencies and delicate judgments inherent in presiding over a trial. In addition, such rulings commonly rest in part on factual determinations by the trial judge, such as the amount of a time an issue is likely to consume, or the likelihood that evidence will confuse the jury. Given these underpinnings, I doubt that Evidence Code section 352 has much proper application to motion practice, where all evidence is on paper and the trial court is in no better position than we are to assess the pertinent factors. Even if it be supposed that a case might arise where Evidence Code section 352 could properly come into play, I would not let this hypothetical prospect serve as justification for a procedural forfeiture.
Lawal’s only other appellate evidentiary objection is that Huckstadt’s declaration about what he had been told by others was inadmissible because Huckstadt lacked personal knowledge of “the truth of certain matters[.]” Her “argument” on this point is a single sentence. Her appellate claim references three of the evidentiary objections that she made below. Only two of those three objections were made below on the basis of lack of personal knowledge. These two objections were to paragraphs 8 and 12 of Huckstadt’s declaration.
The defense summary adjudication motion relied on paragraphs 8 and 9 of Huckstadt’s declaration to show that Huckstadt “receive[d] increasing complaints about Lawal’s abusive and condescending behavior toward staff, independent contractors and vendors” in late 2002 and early 2003. Lawal did not interpose any objection to paragraph 9. In paragraph 9, Huckstadt stated that, in early 2003, “over a half dozen employees complained to me personally” about Lawal’s “abusive, arrogant, disrespectful and overbearing treatment” of them. In paragraph 8, to which Lawal interposed a personal knowledge objection, Huckstadt stated that, in late 2002, he “receive[d] complaints from employees . . . about Ms. Lawal’s abusive and condescending behavior toward her staff.” It is impossible to understand how there could have been any prejudicial error in the superior court’s failure to sustain Lawal’s objection to paragraph 8 when virtually the same evidence was admitted without objection in paragraph 9.
Lawal’s only remaining appellate evidentiary challenge is her claim that her personal knowledge objection to paragraph 12 of Huckstadt’s declaration should have been sustained. The defense summary adjudication motion relied on paragraph 12 to show that Lawal’s “interference” with an outside “claims manager” was “presumptuous, arrogant, and inappropriate and caused Huckstadt significant problems in his negotiations” with the outside claims manager. Paragraph 12 of Huckstadt’s declaration explained that Huckstadt was “in the middle of a sensitive negotiation with” defendant’s outside claims manager in the summer of 2003. While those negotiations were taking place, Huckstadt was also trying to negotiate a new contract with Lawal. Lawal engaged in conduct that upset the outside claims manager, which caused “a significant problem” for Huckstadt in his negotiations with the outside claims manager. Huckstadt “rebuked” Lawal and told her that her conduct was “presumptuous, arrogant and inappropriate.”
Paragraph 12 of Huckstadt’s declaration is itself ambiguous as to whether Huckstadt personally observed Lawal’s interactions with the outside claims manager. However, Huckstadt’s declaration stated in paragraph 1 that he has “personal knowledge of the facts set forth herein.” Consequently, in the absence of evidence to the contrary, the ambiguity must be resolved in favor of a finding that Huckstadt had personal knowledge of those interactions. Accordingly, Lawal’s contention that her personal knowledge objections should have been sustained must fail.
Since Lawal’s appellate evidentiary issues are plainly without merit, this court should not be addressing any lurking Biljac issues. I agree that the superior court properly granted summary adjudication, so I concur in the judgment.
RUSHING, J., Dissenting
I respectfully dissent.
This case exemplifies a pattern that has become all too common, indeed has become typical, in the context of employment discrimination litigation. An employee belonging to a classification protected by anti-discrimination laws alleges that she was the victim of adverse employment action motivated by discriminatory animus toward members of that class. Despite evidence that the employer in fact entertained such animus, the employer moves for summary judgment on the basis that he acted out of nondiscriminatory motives. Instead of analyzing the motion in the comparatively simple framework of traditional summary judgment, i.e., whether the evidence presented leaves a triable issue of fact as to the role, if any, of discriminatory animus in producing the challenged action, the analysis is hijacked by the question, at best subsidiary, of whether the employer’s stated reason for that action was “pretextual.” Worse, evidence tending logically to support an inference of discriminatory motive is conjured out of visibility through ad-hoc incantations whose chief function seems to be to mask the usurpation by judges of the factfinding role entrusted by our Constitution to juries. Even this description gives too much credit to the procedure, for the actual significance of the evidence is typically obscured by epicyclical controversies over the admissibility of this or that tidbit of evidence or the preservation vel non of various points and objections.
The only proper function of summary judgment is to weed out substantively meritless claims and defenses, thereby sparing the courts, and the party entitled to judgment, the burden and expense of trial. Even when properly used this objective is accomplished at the cost of denying the losing party his constitutional right to a jury trial. This result is thought to be justified on the premise that there are no issues for a jury to try, i.e., no triable issues of fact, such that summoning a jury is a futile exercise and waste of resources. But because of the harshness of the result, summary judgment can only be justified in cases where the prevailing party’s substantive right to a judgment is clearly and unequivocally established. All substantial doubts should be resolved in favor of the opposing party, and courts should at all costs avoid usurping the quintessential jury function of weighing, evaluating, and judging the evidence. Any other approach renders the procedure, in my view, unconstitutional.[1]
In the last two decades this state’s summary judgment practice has strayed far from these principles and has lost sight of its intended purpose. It has become a kind of proto-trial in which the substantive issues are all but lost in a cloud of procedural embellishments involving statements of undisputed facts, evidentiary objections, demands for rulings, assertions of waiver, and so on. Missing are not only the quintessential features of a typical trial—live testimony and a jury—but all too often, the substantive merits of the case. Two decades of legislative tinkering—much of it at seeming cross-purposes with itself—have so riddled the governing statute with procedural pitfalls that the proceeding more nearly resembles an intricate and deadly obstacle course than a system of reasoned adjudication.
These legislative embellishments have their apparent genesis in a determination to force trial courts to grant more summary judgment motions, or at least to examine them more closely before denying them. But the burden of the ramifying statutory commands long ago passed the point where any busy law and motion judge could be seriously expected to carry it. The main effect of these ramifications has been to supply an enormous arsenal of tactical devices to practitioners sufficiently steeped in the statutory mysteries to know how to exploit them. The sheer complexity of the procedure provides a grand occasion to pad the billable hour ledger, while holding out the alluring prospect of averting a deserved judgment through some procedural technicality whose effects are insufficiently appreciated by a less well-versed, or well-heeled, adversary.
The central goal of our judicial system—substantive justice—is scarcely to be found among the ends served by the current statute. Attempts to apply it in a substantively sound manner are hamstrung by the need to navigate through not only the pleadings, argument, and evidence—which of old were the dispositive considerations—but a jungle of additional entanglements that serve more to impede than to facilitate a correct determination on the merits. Indeed the merits are all but lost in a bruising contest whose only reliable function seems to be to identify the party with the best equipped lawyer.
The trial court here was called upon to read and address the following argumentative materials: notice of motion and supporting points and authorities (19 pages); defendants’ separate statement of undisputed facts in support of motion (20 pages); plaintiff’s objections to defendants’ supporting evidence (8 pages, 19 objections); plaintiff’s points and authorities (20 pages); plaintiff’s separate statement in opposition to motion (75 pages); defendant’s reply memorandum of points and authorities (10 pages); defendants’ reply separate statement in support of motion (63 pages); defendants’ objections to plaintiff’s evidence (39 pages, 140 objections); plaintiffs’ objections to reply evidence (3 pages, 1 objection). I thus count 249 pages of argument that the court was required to review. Much of this—in particular the 158 pages of “separate statements” and the 50 pages of evidentiary objections—operated in effect as a screen between the court and what should have been the dispositive material, i.e., the several hundred pages of evidence submitted by the parties.
One would be hard put to devise a surer means of losing the forest for the trees. I am reminded of ancient rules of pleading with their intricate systems of rules within rules, incorrect application of which on the smallest matter might produce an essentially arbitrary forfeiture of a substantial claim or defense. The states adopting the Field Codes, including California, sought to shrug off that tradition in favor of one that would, to borrow a popular cliché, “cut to the chase.” But the old rules did not appear overnight in the confiscatory form they eventually took. Instead they evolved from ideas and principles that seemed to make sense within the context where they initially appeared. Perhaps this kind of evolution is inevitable. It now seems to have been echoed in recent developments in summary judgment procedure.
The repercussions of this unfortunate evolution are seen in civil actions of all kinds, but nowhere are they more keenly felt than in the area of employment discrimination. This field presents inherent substantive challenges because the pivotal question in most cases will be the employer’s motive for acting. Under traditional summary judgment practice, this would present an issue for trial if there was any evidence that the employer acted out of discriminatory animus. But the pervasiveness of race- and gender-based prejudice in our society means that there will often be evidence from which a jury might infer discriminatory animus on the part of the employer. The employer himself, or someone in a position to speak or act on his behalf, may well have uttered one or more deprecating remarks about a protected classification to which the plaintiff belongs. As a practical result of this widespread race- and gender-based animus—which of course produces the very evil at which anti-discrimination laws are aimed—a high proportion of these cases, if judged by traditional summary judgment standards, would be eligible for trial. Seemingly unnerved by this prospect, many courts began to develop rules unique to this field of law, and more specifically, unique to the evaluation of evidence on summary judgment motions in this field of law. The lead opinion here alludes to at least three such rules, which I will call the “indirect evidence” rule, the “pretext” rule, and the “stray comment” rule. In my opinion these doctrines cannot be reconciled with deeper principles of California procedure, and in some respects cannot be reconciled with simple logic, at least in the manner and to the extent they have been applied in this and many other cases.
I would here hold that (1) all of the parties’ evidentiary objections were impliedly overruled, and are preserved for appeal; (2) plaintiff raised a triable issue of fact concerning the genuineness of defendants’ claimed reasons for discharging her; (3) more broadly, plaintiff raised a triable issue of fact concerning the existence and role of discriminatory animus in discharging her; and (4) no material evidentiary error has been shown. I would therefore reverse the judgment and let this case go to trial.
Evidentiary Issues
A. Preservation of Objections
I think it is time for the courts, or the Legislature if necessary, to drain the festering procedural swamp that has formed around the treatment of objections to evidence offered in support of and opposition to a motion for summary judgment. The statute declares that “[e]videntiary objections not made at the hearing shall be deemed waived.” (Code Civ. Proc., § 437c (§ 437c), subd. (b)(5).) This language might be taken to mean that all objections made “at the hearing” are preserved for appeal.[2]
The weight of authority now seems to agree that (1) the trial court is obligated to rule expressly on all objections, and (2) the court’s failure to do so may effect a “waiver” of objections, so that they are not preserved for appellate review. This means, at least in theory, that a meritorious claim or defense may be completely and finally lost on the basis of an opponent’s incompetent evidence, due to a default not by the holder of the claim or defense, but by the trial judge. Some courts have not been willing to go this far, but in all cases the rule has generated a vast sea of confusion and controversy as courts try to decide what a party must do, beyond merely asserting an objection, to preserve it for appeal.
I see no ponderable reason whatever for this confusion, and certainly not for declaring the forfeiture of meritorious objections. I would therefore repudiate the currently prevailing approach in favor of one presuming either that the trial court ruled correctly on evidentiary objections, or that the court overruled all objections it did not expressly sustain. A similar treatment was adopted in another district some years ago, but has since been savaged by a number of courts, and has most recently been repudiated by the court that adopted it. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac), overruled in Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566.) I believe the Biljac decision was substantially correct, and was surely more nearly correct than its critics have been.
The view now prevailing appears to have grown out of the statutory command that the trial court “consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . .” (Code Civ. Proc., § 437c,subd. (c).) (Italics added.) Contrary to the assumption apparently indulged by a number of my colleagues, this language does not mandate express rulings. It reinforces the requirement of express objections by directing the court to consider all evidence, objectionable or not, unless it finds that a meritorious objection has in fact been made. But nowhere is the court commanded to issue an explicit ruling. Moreover, even if the statute could be read to impose such a requirement, it says nothing about using it as the predicate for a forfeiture of objections for appeal.
To impose a forfeiture on a party based upon a court’s violation of its supposed duties marks in my view an extravagant departure from the core principles on which we rely for a sound jurisprudence. Most broadly, it is not the practice in our society, or in any civilized society, to punish one actor for another’s defalcations. Indeed, viewed from this perspective it becomes apparent that the doctrine under scrutiny is not properly one of “waiver,” as courts have called it, but of externally imposed forfeiture. “Waiver” is the voluntary relinquishment of a known right, or at most, “the loss of an opportunity or a right as a result of a party’s failure to perform an act it is required to perform . . . .” (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 315.) I cannot relinquish your rights, and a court cannot relinquish mine. Nor can a court, by its conduct, bring about the “waiver” of a party’s rights in the broader sense. For that to occur, the party must neglect to perform some “act it is required to perform.” (Ibid.) Section 437c does not require the party to do anything to preserve its evidentiary objections beyond asserting them in a timely and proper manner.
Attempts to place the anti-Biljac regime within a traditional “waiver” framework require the courts to posit some further act (or omission to act) which can justify forfeiture of a party’s objections. A variety of formulas have been suggested, often on a seemingly ad hoc basis. At the furthest extreme it has been suggested that, to avoid “waiv[ing]” his objections, a party must not only pointedly request a ruling, but “must yell and scream and stamp his feet, or do whatever else it takes to force the trial court to rule on those objections.” (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 714 (dis. opn. of Vogel, J.).) A treatise advises counsel, more plausibly, that counsel “[b]e sure there is a reporter present at the law and motion hearing, and politely ask the court for an on-the-record ruling on each objection.” (Weil & Brown, Cal. Practice Guide: Civil Practice Before Trial (The Rutter Group 2007) ¶ 10:301.5, p. 10-116.) Of course a busy trial judge is no more likely to countenance such a meaningless ritual than is an attorney to avoid a contempt citation once he starts “yell[ing] and scream[ing] and stamp[ing] his feet . . . .” (Gallant v. City of Carson, supra, 128 Cal.App.4th at p. 714 (dis. opn. of Vogel, J.).) The fact is that when a party properly brings an objection to the trial court’s attention—i.e., when he files it in proper form—he has done everything he can or should be required to do to bring about a ruling.
Suppositions to the contrary may rest on instincts appropriate to the appellate treatment of evidentiary objections asserted during trial. If so, those instincts have proven highly misleading in the context of summary judgment practice. When an objection is interposed during the examination of a witness, the problem of waiver cannot easily arise. The examination of the witness cannot proceed until the trial court acts on the objection. The most common action is to say “sustained” or “overruled,” which of course constitutes a clear ruling and preserves the issue for appeal. But if the court failed to do that, we would still consider the issue preserved on appeal. This follows directly from the governing statutory language, which makes no reference to the court’s ruling on an objection but only requires an objection, sufficient in form, to preserve the point. (Evid. Code, § 353.) But if it were necessary in my hypothetical case to avoid a forfeiture, I would not hesitate to infer a ruling from the trial court’s actions. If the court permitted the witness to answer, I would hold that he had impliedly overruled the objection. I would infer the opposite—that he had sustained the objection—if he instructed the witness not to answer, told the questioner to proceed to his next question, or struck any answer the witness had already given. Although it is difficult to picture a trial court engaging in such conduct on a regular basis, isolated examples certainly occur, and I have never heard it suggested that the party was under some duty to force the words “overruled” or “sustained” from the trial court, on pain of forfeiting the objection.
This alone distinguishes trial objections from those asserted in connection with summary judgment, or any other motion or similar matter. Trial objections are typically asserted in a setting where the court must respond immediately either by permitting the proponent of the challenged evidence to proceed unimpeded (overruling the objection) or causing him to redirect or abandon his efforts (sustaining the objection). This flow of evidence, which must on objection be contemporaneously obstructed, diverted, or left alone, has no parallel in a summary judgment setting. There, the entire universe of materials on which the decision must be based—including the evidence and any objections to it—will go before the court at once, in a single non-linear mass.[3] Moreover, while a trial objection is perforce dealt with at the time of its making, a final ruling on summary judgment is typically deferred, at least in this district, until after the hearing on the motion. It is commonly decided not in open court, but in camera.
A somewhat closer analogy may be found in motions in limine, which permit a party to assert written evidentiary objections at trial. Such a motion “is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context.” (People v. Morris (1991) 53 Cal.3d 152, 190.) To preserve the objection for appeal, however, the objector must generally “secure an express ruling from the court.” (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) But this rule rests on a distinction akin to the one noted above: A motion in limine is made in anticipation of evidence to be offered in open court at some later time. If the court does not rule in advance, the objecting party may fairly be required to reiterate the objection when the evidence is actually offered. The linear flow of the trial process guarantees a further and perhaps superior opportunity to call upon the court for a ruling. The objector is therefore required to avail himself of that opportunity.
Again, there is no comparable opportunity on a motion for summary judgment. There the objector places the objection before the court, along with the evidence and argument, by putting it in writing and filing it with the other papers. He has thereupon done everything he can reasonably be required to do to secure a ruling on that question. To be sure, he could be required to take some further step at the hearing, such as reminding the court of his objections and formally requesting a ruling, but I can think of no reason to predicate a forfeiture of the objections on such a hollow ritual.
The treatment of evidence on summary judgment differs from that at trial in another respect. In trial practice a reasonably clear distinction is made between matter which is “in evidence” and matter which is “not in evidence.” There is a more or less formal procedure for designating the status of proffered evidence as “in” or not. In resolving the issues in the case, the factfinder’s universe is strictly confined to the former category. But again there is nothing comparable on summary judgment. All of the proffered evidence, objectionable or otherwise, is before the court. The only question is whether the court will consider it. The court typically addresses this question at the same time as, and in tandem with, its analysis of the other issues presented by the motion. The court is, therefore, often unable to rule on objections at the hearing. It is that fact, and not judicial recalcitrance, that makes the rituals prescribed by the cases so hollow. All the court will often do, all it can often do, is promise to consider the objections as it works though the motion. And this, presumptively, is what it actually does.
The most nearly analogous situation in trial practice is probably that in which the court permits a party to adduce evidence over his opponent’s objection, while reserving a ruling on the admissibility of the evidence. In such a case, if the court neglects to expressly rule on the objection, it is presumed to have overruled it and admitted the challenged matter into evidence. (Clopton v. Clopton (1912) 162 Cal. 27, 32; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 387, p. 480; see People v. Flores (1979) 92 Cal.App.3d 461, 466; People v. Jacobs (1987) 195 Cal.App.3d 1636, 1651.)
This in my view is the simplest and soundest approach in the present context. If a party lodges otherwise proper objections to evidence, and the court does not rule on those objections at the hearing, the court should be viewed as having reserved a ruling on the objections. Its later failure to issue an express ruling effects an implied overruling of all objections, which are therefore preserved for appeal. The entire record is thus presumptively before the appellate court, and the burden is on the objecting party to show that evidence presumptively considered by the trial court should instead be disregarded in determining the propriety of the order on the merits. Paradigmatically it will be the appellant—the party losing on the merits—who will be most keen to challenge the evidence before the trial court, but the prevailing party may also seek to show that its objections to the appellant’s evidence furnish an alternative ground of affirmance. I am aware that some of my colleagues have detected dire consequences in the absence of express evidentiary rulings by the trial court. Many years spent as a law and motion judge, ruling on two to four summary judgment motions a day, starkly divide my perceptions from theirs. The appellate critics of Biljac have suggested that trial courts must be coerced into issuing express rulings in order to ease our own workloads. Even if this concern seemed substantial I would fail to see how it could justify imposing upon the parties the absurd duty of “forcing” the trial court to rule. But I find the concern itself largely, perhaps entirely, chimerical. I fail to see how such rulings will significantly reduce the burdens we undertake in reviewing summary judgments. Assertions to the contrary seem entirely divorced from the concrete realities of our work. They seem to be woven entirely of abstractions and inapt generalizations.
To place this concern in context, let us posit a concrete example. A party who claims that there is no triable issue concerning an intersection collision introduces testimony to show the light was green, the brake lights were on, the engine was revving, and the tires were squealing. The opposing party objects to all four items. The trial court expressly rules, sustaining two objections, overruling two. On appeal one party challenges the first two rulings and defends the last two. The other challenges the last two and defends the first two. Our task on appeal is to determine which if any of the four objections were meritorious, and if so, whether the judgment can stand on the remaining evidence.
Now suppose instead that the trial court does not expressly rule on the objections. On appeal one of the parties says, all four objections should have been sustained. The other says, all four should have been overruled. Our task on appeal: exactly the same. We must decide whether any of the four objections were meritorious and if so, whether the judgment can stand on the remaining evidence. In other words, the presence of express rulings by the trial court makes no difference whatsoever to our task on appeal. Indeed, a controversy over that point only complicates the process, serving to further obscure the merits.
Several cases have alluded to the possibility that the absence of express evidentiary rulings can impair review where the trial court made, or was called upon to make, an evidentiary ruling entrusted to its discretion. One frequently cited case, relying on authority outside the summary judgment context, asserts that all evidentiary rulings on summary judgment are reviewed under an abuse-of-discretion standard. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169, citing People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640; see Carnes v. Superior Court (2000) 126 Cal.App.4th 688, 694 [“the weight of authority holds that an appellate court reviews a court’s final rulings on evidentiary objections by applying an abuse of discretion standard”].) From this premise it is apparently deduced that express rulings are necessary to enable the reviewing court to adequately respect the deferential standard of review governing discretionary rulings.[4] These concerns, too, are chimerical. While it is true that a trial court enjoys varying amounts of discretion in making some types of evidentiary rulings, many such rulings are not discretionary in the slightest. No court has discretion to admit hearsay evidence, or expert opinion by an unqualified witness, or testimony manifestly lacking any foundation in personal knowledge, over proper objection. Even where an objection is of a type usually invoking the trial court’s discretionary powers, the deferential standards of review alluded to above should have limited scope as applied in the present context. Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors. In my view, all reasonable doubts about the admissibility of evidence, like doubts on other aspects of the motion, must be resolved in favor of the party opposing summary judgment.
Thus in Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320, the trial court ruled that a declaration by a purported expert witness would not be considered in opposition to a motion for summary judgment. The reviewing court sustained this ruling, noting that the declaration “did not specify any details about his experience which would have enabled the trial court to assess his qualifications to testify . . . .” (Ibid.) Citing a case involving rulings at trial, the court applied an abuse-of-discretion standard. (Id. at pp. 1319-1320, citing People v. Chavez (1985) 39 Cal.3d 823, 828.) However, it could have reached the same result by a more secure road had it relied upon the appellate presumption of correctness and the proponent’s burden of demonstrating a witness’s qualifications to give expert opinion testimony. (People v. Rocco (1971) 21 Cal.App.3d 96, 107.)
Finally, even assuming the trial court’s discretion is properly invoked by a given objection, it would not follow that the objection was forfeited by the court’s failure to issue an express ruling. As noted above, I would hold that the court has presumptively overruled objections not expressly sustained. That ruling is not rendered less reviewable merely because it is inferred. This approach would have the salutary effect of motivating the objecting party to seek an express ruling in his favor, because the alternative is an implied ruling against him, which would be presumed correct on appeal. Yet it would stop short of the draconian extreme of imposing a forfeiture based upon the trial judge’s omissions, and it would avoid creating an entire new field of collateral controversy on appeal, as the anti-Biljac cases have done.
An explicit recital of the trial court’s actual reasoning about the admissibility of the evidence is simply unnecessary, if not in fact superfluous. This is one response to the suggestion that we must have evidentiary rulings so that we know what evidence was actually taken into account by the trial court. It does not matter what evidence was taken into account. What matters is what evidence should have been taken into account, and whether the order under review—granting or denying summary judgment—can be sustained in light of that evidence, coupled with the governing substantive law. It is axiomatic that as a reviewing court, we are concerned with the trial court’s actions, not its reasons. “If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion. Two theories seem to be involved here: First, that the appellate court reviews the action of the lower court and not the reasons for its action; second, that there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 340, p. 382.) The “decision” at issue on appeal from a summary judgment is the judgment, not subsidiary determinations such as what evidence to consider. That decision is correct if the evidence properly before the court sustains it. It is incorrect if that evidence does not. The trial court’s ideas about what evidence was properly before it will rarely have any direct bearing on the reviewing court’s task. At most they may point to the pivotal issues in the case. But that is not the trial court’s job. It is the job of the parties on appeal. I say leave their job to them, leave the trial court’s job to it, and acknowledge and embrace our own duties as a reviewing court, without scouring the statutes for grounds on which to declare procedural forfeitures. We can get along quite nicely without express evidentiary rulings from the trial court. Indeed the chief effect of the present regime is to generate an enormous quantity of appellate wheel-spinning, accompanied by the occasional sacrifice of a colorable claim or defense on grounds that meritorious evidentiary objections have been “waived.”
Cases repudiating Biljac have also pointed to the basic principle that appellate courts are generally confined to the record that was before the trial court when the challenged order was made. Except as a restatement of the points discussed immediately above, this assertion misses the mark entirely. The issue before us is not the content of the record, but what parts of that record, and specifically what evidence, should be taken into account in determining whether the case presents a triable issue of fact. If the trial court made an error in considering or disregarding parts of the record, we can and should correct that error on appeal. More accurately, unless there is some peculiar reason to focus on the trial court’s rulings, we should address the parties’ arguments concerning the evidence, along with such other arguments as they present, and decide the appeal accordingly.
I have tried and failed to posit a concrete situation in which express trial court rulings on a summary judgment motion would make the appellate process any surer, fairer, or more efficient. Insofar as an evidentiary issue is potentially dispositive of a party’s right to summary judgment, that issue is virtually certain to be reexamined on appeal under an independent judgment standard. This means that we will analyze the issue in exactly the same way, and reach exactly the same result, no matter what the trial court did. In such a context, the trial court’s ruling is, if anything, a distraction from the issues on which the appeal actually turns.
The regime thus introduced in contraposition to Biljac seems to me incapable of generating any ponderable benefits for our legal system. But it would be inaccurate to say that it makes no difference at all on appeal. It introduces an additional issue: whether the luckless loser has suffered an involuntary forfeiture of his right to insist that his case be decided on admissible evidence. I would recognize this issue for what it is, a barrier to substantial justice which confers no compensating jurisprudential benefit unless the elimination of meritorious claims and defenses on draconian technicalities is itself perceived as a benefit. I do not so perceive it, and would repudiate a regime that produces it.
Section 437c implies that objections are preserved for appeal so long as they are properly asserted in the trial court. (See § 437c, subd. (b)(5).) I would take that implication as our guiding principle and thereby escape the procedural jungle that has grown up needlessly around this issue. As a result, I would find no error in the trial court’s failure to render express rulings on the parties’ evidentiary objections. I would instead move directly to the question whether the evidence presents a triable issue of fact with respect to defendants’ reasons for discharging plaintiff. In that context I would consider, as appropriate, the admissibility of the parties’ evidence in light of their respective objections.
B. Defendants’ Oppressive Objections
If I did reach the objections as a distinct issue I would hold that all of defendants’ objections were waived by the gross oppression and overreaching they reflect. Defendants’ objections were set forth in 140 separate paragraphs taking up 38 pages. These numbers do not convey their full burden, because nearly all of the 140 paragraphs set forth multiple grounds of objection. Thus the very first paragraph states, “Defendant objects [sic] to the Deposition of Sue Grose . . . on the grounds that such testimony is vague, ambiguous, irrelevant, incompetent, lacks sufficient foundation, is based on conjecture and speculation, and constitutes inadmissible opinion and hearsay.” The paragraph goes on to argue a somewhat more specific objection, but the fact remains that five broad grounds of objection are asserted: vagueness, relevance, foundation, opinion, and hearsay. This pattern is repeated throughout the 38 pages, exacerbated in some instances by the assertions wholly alien to the Evidence Code (evidence was “taken out of context”), and worse yet, arguments about the facts (“This testimony is irrelevant because . . . Mr. Lawson continues to work for 501(c) in a management position”).
In addition, many of defendants’ objections are so patently meritless that terms like “frivolous” spring to mind. For example, defendants denounce as “double hearsay” the deposition testimony of Ms. Grose that defendant Huckstadt told her about a conversation he had with Ron Lawson. Huckstadt, she testified, said “he thought it was amusing that Ron was warning him that [plaintiff] was Nigerian and all Nigerian women were princesses. And John [Huckstadt] commented that he just couldn’t believe the way one black would speak of another, and at that point he felt it was amusing.” There is no merit in a hearsay objection to this testimony. Huckstadt is a party to the action, and anything he says, to anyone, may be admitted against him (or his principal) over a hearsay objection. (Evid. Code, § 1220, 1222 [vicarious admission].) Moreover his statements concerning his then-existing state of mind (his amusement over one black person’s disparagement of another), would be admissible over a hearsay objection even if he were a stranger to the action. (Evid. Code, § 1250, subd. (a).) Lawson’s statements, in turn, are not hearsay since they are not offered to show the truth of the matter asserted (that all Nigerian women are princesses), or indeed to show anything at all about what Lawson thought or had observed, but to show Huckstadt’s response to statements of that kind, as reported by himself. (See Evid. Code, § 1200, subd. (a).)
Defendants lodged similarly unsound objections against plaintiff’s averments concerning defendants’ employment offer and the statements then made to her by Sue Grose concerning plaintiff’s anticipated duties. They asserted, incomprehensibly, that this testimony was “opinion.” They also asserted that it was hearsay. This objection, while at least understandable, is frivolous. To the extent that an extrajudicial statement constitutes an offer of employment, is of course a legally operative event in its own right, quite independently of any assertive content. To that extent it is admissible to show the terms of the resulting contract. But even if the statements were offered for the truth of the matter asserted, there is no doubt that Grose was authorized to make them on defendants’ behalf and they are therefore admissible as statements by a party’s authorized agent. (Evid. Code, § 1222.)
One of defendants’ objections was so extravagantly meritless that their own counsel expressed disbelief at oral argument that the objection had been made. Plaintiff averred in her declaration that on one occasion Huckstadt publicly referred to her as a “silly little girl.” Defendants objected to this on the ground that it was hearsay. When a member of this court asked counsel about the objection, he stated, “I don’t actually think we did object to that.” When assured that they had, he offered to withdraw the objection, acknowledging that according to plaintiff, the statement was “made directly by the chairman of the company to her,” and that therefore “I don’t think there’s a legitimate ground to object.” When told, “You objected to it on hearsay grounds,” he replied, “Well it’s not hearsay, clearly . . . . It would be an admission of a party if it’s made by a chairman of the company directly to the plaintiff.” True enough as far as it goes, but once again, no hearsay issue could even arise unless the statement were offered for the truth of the matter asserted. (Evid. Code, § 1200, subd. (a).) This statement was obviously offered to prove not that plaintiff was a silly little girl, but that defendant called her one.
The trial court was thus confronted with an enormous number of evidentiary objections, a fair sample of which appear to be utterly without merit. In such a case, I believe, the trial court can properly overrule, and a reviewing court ignore, all of the offending party’s objections on the ground that they constitute an unacceptably oppressive burden on the opposing party, and an outrageous imposition on the resources of the court. Such treatment would have the salutary effect of coercing moving parties into narrowing their objections to those that really matter and have colorable merit. Instead, under the current system, the movant is encouraged by at least two tactical considerations to raise as many objections as possible, meritorious or otherwise. First, the trial court’s manifest inability to adequately address all of the objections may lead to the erroneous granting of the motion, or to a reversal of a ruling denying the motion if, en route to that ruling, the trial court throws up its hands and refuses to rule on the objections. (See Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 643 [mandate issued to set aside denial and rule on objections].) Second, whatever the court does, the sheer number of objections will place a tremendous additional burden on the opposing party, who will have to devote that much more of his limited time to evidentiary issues, and that much less to the merits of the motion. (See § 437c, subds. (b)(2) & (b)(3) [time between opposition and reply].)
I find a supreme irony in the juxtaposition of the supposed purpose of summary judgment, which is to conserve the resources of the court and parties by obviating unnecessary trials, with the notion that the trial court can be compelled to rule on all of the objections the parties may choose to assert in response one another’s evidence. To adequately analyze the cataract of objections now before us—which is by no means atypical—would take an able law and motion judge at least a full day of flipping through the record, the code, and the casebooks. To really be assured of correctness might take him several days. In that time a substantial part of the case could instead have been tried. But no metropolitan law and motion judge has several days, or even one day, to decide a typical motion for summary judgment—let alone to merely decide which of a host of evidentiary objections have merit. To really comply with such a mandate would require the transfer of judges out of trial departments and into law and motion departments. This would be justified only if it could be supposed that more court days would be saved by successful motions (which obviate trials) than would be lost to unsuccessful ones (which consume resources without obviating a trial). But to bear out that supposition, a substantial proportion of summary judgment motions would have to be successful. I see little chance of this. I know of no statistical studies, but my own experience both on and before the bench leads me to strongly believe that many summary judgment motions are not brought in the belief that they have merit. As long as I can remember, practicing attorneys have spoken of summary judgment as a step taken to “smoke out” the plaintiff or force him to “show his hand.” Of course, the procedural minefield now embodied in the statute may elevate the hopes of even the least worthy movant that he may get lucky, i.e., his opponent may overlook some necessary step and, through procedural forfeiture, render successful a motion devoid of substantive merit. Even this outcome may not represent a savings in judicial resources, since it opens the way to a suit by the losing party against his own attorney for legal malpractice.
Merits
A. Triable Issues of Fact
Stripped of the many layers of complexity introduced by procedural sparring, this case is not difficult to summarize. After founding defendant 501(c), defendant Huckstadt decided to become, in defendants’ words, “semi-retired.” Toward that end he handed day-to-day management of 501(c) over to Sue Grose. Over the course of their business relationship, he exhibited difficulties in dealing with “aggressive” women as business associates. Thus Grose testified that whenever Huckstadt was exposed to a woman in a business context, he would exhibit discomfort and ultimately reduce the woman in question to sexual terms: “I watched [Huckstadt] in interactions with most of our primary business relationships, whether it was providers, bankers, and there was a general pattern that as a—if a male in one of those roles would walk into the room to speak with John, he would speak with authority, he would state what he wished to have happen, and John would respond in that manner. If a female approached him in that manner, he would act uncomfortable, he was less likely to be open to the suggestion, and I would very likely afterwards hear comments either about her sexual proclivity or how he thought she would be in bed.” Representative of his “standard mode of procedure” were his comments to Grose about the female members of a nonprofit trust, “fairly high-level people from non-profits all over the country.” “[T]here wasn’t a single one of them that John met that I didn’t eventually hear discussed in sexual terms, one that he was positive was a lesbian, another he felt was quite attractive and kept contemplating what she would be like sexually . . . .” Based on eight years’ interaction with him, Grose believed her own job “would have been substantially easier if [she] were male because it was more difficult to establish the same thing I accomplished because I was female . . . .” His attitudes toward women “meant that it was a lot more work getting to the resolutions that we got to.” She testified that she attempted to counsel Huckstadt about these difficulties, suggesting that he try not to focus on women’s gender, but instead view them simply as business associates. Huckstadt admitted to her that he might have difficulties dealing with “aggressive” women.
Huckstadt also made arguably racist comments to Grose. He expressed “some concerns along racial lines” over the hiring of Ron Lawson, an African American, on the stated ground that Lawson was “one of those blacks who have a lot of contacts but they can’t actually close any sales . . . .” Huckstadt “recounted two or three other examples he knew of people who were in that group as one of those blacks.” Around the time of the hiring of plaintiff, who is Nigerian, Huckstadt told Grose he found it “amusing” when Lawson warned him that “all Nigerian women were princesses.” The source of his amusement was that he “just couldn’t believe the way one black would speak of another . . . .” Grose “probably” did not respond to any of these comments, because “[i]t was not unusual for [Huckstadt] to make comments about whether it was Jews or blacks or other groups, and [she] pretty much just let them go.”
Huckstadt’s reported allusion to “those blacks who have a lot of contacts” supports rational inferences in derogation of the inference, emphasized by defendants, that their diversified workforce reflected an absence of race- or gender-based animus. Their clientele consisted entirely, in their words, of “not-for-profit charitable organizations throughout the United States . . . .” Their perception that some members of racial minorities had “lots of contacts” in this world could furnish a motive, entirely consistent with discriminatory animus, for employing such persons. One may hire a person because of some business advantage seen to inhere in his race or gender, and still fire him out of race- or gender-based animus.
Plaintiff herself also described events that she contended showed discriminatory animus on both racial and gender grounds. She related an occasion on which she reported to Huckstadt about some “difficulty” she had experienced with another 501(c) employee, who told her “black people are always angry” and “black people are responsible for all the crimes and drug problems in America.” Huckstadt only replied, “that’s just Jerry,” and gave no indication that he took such remarks seriously or would do anything about them. She also testified that Huckstadt referred to her publicly as a “silly little girl,” and at a board meeting as “babes.” He used that term, as well as “sweetie” and “honey,” to refer to her on other occasions. Plaintiff also heard him refer to Grose as a “greedy bitch” and “stupid girl.” Another employee heard him call Grose a “shrew”
Huckstadt averred that while he had referred to plaintiff as “babe,” he used that term with persons of both genders and on this occasion meant it in an “encouraging counseling” sense, not a sexual one. Claitor testified that Huckstadt had used both “babe” and “babes” in reference to him. However Grose testified that she never heard Huckstadt use either term. Claitor never heard Huckstadt use “honey” or “hon.” Huckstadt denied ever calling plaintiff “sweetie” and acknowledged at most that he might have called her “hon” not “honey.” These of course were factual conflicts for a jury, not a judge, to resolve.
Plaintiff testified that on another occasion, Huckstadt told her “that he saw [her] as the same person as Ms. Grose—insinuating that we shared the same negative qualities.” Defendants of course object to this evidence, most colorably on grounds of opinion. But a statement that one is seen as “the same person” as another is likely to require interpretation, and the person to whom it is made is likely to be in a better position than anyone else (save of course the speaker) to correctly perceive its intended effect and to convey that perception in testimony through an expression of lay opinion. (See Evid. Code, § 800.) A trial judge, who could actually see the witness testify in the context of an entire trial, might well have discretion to exclude such testimony. (See ibid., Evid. Code, § 352.) In my opinion a judge presiding over a summary judgment motion has no such discretion.
I think this, together with other evidence discussed below, furnishes an ample basis for a jury to infer that Huckstadt had serious difficulties with women who occupied positions of authority. A jury could readily infer that it was no coincidence that Huckstadt fired plaintiff a scant few months after he returned to active management of the company. Huckstadt’s claim that he fired her over performance issues, most particularly her supposed inability to manage her subordinates, raises a classic triable issue of fact. As discussed immediately below, that claim is cast in doubt by substantial conflicting evidence, both intrinsic and extrinsic.
“ Pretext”
A central component of defendants’ argument, which the trial court embraced and the lead opinion here ratifies, reflects what I consider the spurious rule of “pretext” that has infected many cases evaluating summary judgment motions in the employment discrimination context. I will not review the history of this supposed “rule” here. Suffice to say that many cases have elevated to dominant status the “three-step analytical framework adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804, . . . (McDonnell Douglas).” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111 (Reeves).) “Under that framework, the plaintiff may raise a presumption of discrimination by presenting a ‘prima facie case,’ the components of which vary with the nature of the claim, but typically require evidence that ‘(1) [the plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]’ [Citation.] A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, is mandatory—it requires judgment for the plaintiff. [Citation.] However the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action. [Citation.] At that point the presumption disappears. [Citation.]” (Id. at pp. 111-112.) As we said in Reeves, the “frequent misconstruction” of the McDonnell Douglas decision has “led too many courts to replace basic principles of procedure, evidence, and logic with elaborate and essentially arbitrary obstacles to relief.” (Id. at p. 111, fn. 11.) “Foremost among these is the notion, which pervades innumerable decisions, that on summary judgment in a case of this kind, the ‘ultimate issue’ is ‘pretext.’ ” (Ibid., quoting Hugley v. Art Institute of Chicago (N.D.Ill.1998) 3 F.Supp.2d 900, 906, fn. 7.) This makes as little sense, we said, as declaring perjury to be the ultimate issue in an intersection case where the parties contradict each other as to the color of a traffic signal. (Reeves, supra, 121 Cal.App.4th at p. 111.) To reason in this manner, we said, is to let “the pretext tail wag[] the whole anti-discrimination dog.” (Ibid.)
The proper role of “pretext” in such a case is as one kind of affirmative circumstantial evidence of discrimination. An employer’s misrepresentation of his reasons for taking an adverse employment action implies that he has some motive for hiding his real reasons, such as that their disclosure would subject him to liability. Thus, where it affirmatively appears that the employer has given a false reason for his action, it may be entirely reasonable to infer that the reason was concocted to conceal the fact that the action was in fact motivated, at least in part, by discriminatory animus.
The underlying principle is akin to the one on which criminal juries are routinely instructed: that if the defendant made “a false or misleading statement relating to the charged crime, knowing the statement was false and intending to mislead, that conduct may show . . . he . . . was aware of . . . his . . . guilt of the crime and you may consider it in determining . . . his . . . guilt.” (CALCRIM No. 362.) Such an inference may not be sufficient by itself to establish the employer’s liability (see ibid.), but it may certainly contribute to a finding that the challenged action was motivated by discriminatory animus. (Cf. CACI No. 204 [“You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”]; Evid. Code, § 413.)
On the other hand, a finding of discriminatory motive may be reached quite rationally without ever finding that the cited reason was “pretextual,” just as the red light case might be decided without ever finding that one of the parties committed perjury. In both cases the “ultimate issue” is what really happened, not whether one of the parties is lying about it. If an employer offers an innocent reason for his actions and there is no evidence to the contrary, then of course he is entitled to summary judgment. But if there is evidence to the contrary, the question of pretext is at best incidental; the issue is whether his conduct was in fact motivated entirely by the stated reason or whether discriminatory animus was a but-for cause of that conduct.
In fact the reasoning with which I take issue here is structurally similar to the problem discussed in the preceding section about trial court evidentiary rulings. In both cases a question that is at best incidental to the analysis is erected in front of, and obscures our view of, the pivotal issue. Such screen issues are the bane of reliable analysis.
Here there was a great deal of evidence that defendants’ stated reasons for firing plaintiff—that she was a poor people manager, demoralizing the workforce and even alienating some clients—were pretextual. First, the testimony of Ms. Grose supports serious doubts about the existence, scope, causes, and cures of the supposedly pervasive friction between plaintiff and staff. Asked to compare employee morale in April 2003, when she left, with that in January 2002, when plaintiff was hired, Grose said, “There was not a significant change.” She testified that she went through the company “and talked to various staff people to try to determine where we were, and the response that I received is that certainly the style was different and people were adjusting to that, but I was not—other than Terri, I was not hearing significant concerns.” If credited, this testimony means that with one exception, morale had not suffered during plaintiff’s tenure as a vice president. The noted exception, Terri O., warrants separate attention, which I give it below.
Nor would a jury have to believe Huckstadt’s averment that defendants were troubled by a number of complaints from employees about plaintiff’s treatment of them. Huckstadt said that he began hearing complaints in 2002. Directly addressing this assertion, Grose said that she recalled no complaints. Nor is it established that such complaints were communicated to plaintiff. The absence of such communication supports an inference that there was nothing to communicate. In a possible attempt to supply an alternative explanation, Huckstadt averred that when he heard the supposed complaints in late 2002, he “mentioned them to Ms. Grose to handle.” But this contradicts Grose’s testimony that she recalled no such complaints.
Defendants objected that Grose’s testimony on this point is irrelevant: “That Ms. Grose purports not to recall hearing complaints over two years later does not prove that such complaints were not made or that Mr. Huckstadt did not mention such complaints to Ms. Grose at the time.” Relevance depends not on what a given item of evidence “prove[s],” but what it tends to prove. (Evid. Code, § 210.) This error pervades defendant’s arguments and objections; thus they complain that another part of Grose’s testimony is “incompetent and irrelevant” because it shows that she “cannot testify with certainty” on the point asserted.
A jury could readily find that the bulk of any complaints received by defendants about plaintiff’s management skills were the result not of any substantial deficiency on plaintiff’s part but of Huckstadt’s entanglement of the business in his private life, and vice versa. Huckstadt spoke of the “family” culture he had developed at the company, but a jury could readily conclude that a more accurate characterization is provided by counsel for plaintiff: a “harem culture.” Grose contrasted Huckstadt’s management style with her own, as follows: “I felt that one of the most important things for staff was to be able to have some predictability, consistency. They needed to know that how they were evaluated and promoted and compensated was based on their performance, and if their performance continued to be strong, then so would their position at the company. [¶] John’s management style was, as he referred to it, very much family based, and what that meant is it was based on personal relationships so that—since, unbeknownst to me, when I went to work there, I knew that his ex-wife worked there, I did not know that his current girlfriend and his former girlfriend worked there. Relationships were very often based—business relationships were very often based on these personal factors, and decisions that were made during the day might well reverse in the course of an evening of personal interaction.” (Italics added.)
This testimony supports an inference that the three employees mentioned, and any employees under their protection, felt free to behave insubordinately toward their supervisors in anticipation of later intervention (the “revers[al]” of the supervisors’ directives) by Huckstadt. And indeed that was apparently the case, at least with respect to Huckstadt’s ex-wife, Terri O., whose complaints about plaintiff were evidently viewed by Grose as symptomatic of a problem arising not from any lack of management ability on plaintiff’s part, but from Terri’s relationship with Huckstadt. Rather than convey Terri’s complaints to plaintiff, Grose took them to Huckstadt, apparently in the hope that he would take them up, not with plaintiff, but with Terri. Thus, when asked to relate what she told Huckstadt about Terri’s complaints, Grose testified, “Because of the fact that we were going through this change of structure and we were trying to add more structure to the situation, we understood that would be a process of adaptation for all the employees. Terri had more difficulty than most employees adapting to it. She would be fairly openly rebellious in situations like team meetings that were being set up for the department. And the discussion John and I had was whether or not Terri would be able to adapt and remain in the position. My position continued to be that she could. That if we could go through normal channels and Terri could become accustomed to reporting to [plaintiff] as her supervisor without having side conversations on a personal level with [Huckstadt], that she could adapt and she would be a strong employee . . . .” (Italics added.)
Terri’s salary posed a separate but potentially related concern. It was a point of discussion between Grose and Huckstadt that if the company were sold, they would have to deal with Terri’s being “compensated at a substantially higher number than we could justify, based upon her job description.” Grose testified that the company hired an outside specialist to perform annual salary reviews, which consistently showed Terri’s salary to be well over market rates. Huckstadt told Grose that he had raised Terri’s salary to this level “based on Terri’s level of personal expenditures.” The formula stated by Huckstadt in setting Terri’s salary, as well as that of his then-current girlfriend Jeanne G, was “Jeanne or Terri needs ‘x’ number of dollars for their income. That will, therefore, be their salary.” At the same time, Huckstadt expressed concern, according to Grose, that if Terri failed to adapt to the new management structure she might be discharged, “which would be a personal financial hardship for him because her salary was not specifically related to her job skills but was John’s personal support of Terri.” It is of course possible that the only support obligation Huckstadt felt toward Terri was a moral or charitable one, but as I read this testimony it would support an inference that Huckstadt viewed Terri’s salary as a substitute for, or prophylactic against, his own obligation to pay her spousal support, such that its loss or diminution could inflict a direct financial burden on him. This casts in a different light Terri’s statements, as testified to by Huckstadt, that “if [plaintiff] was going to stay, she [Terri] was going to have to find other employment.”
This testimony supports an inference that the employee complaints on which defendants place such emphasis originated, and were known by Huckstadt to originate, not in deficiencies in plaintiff’s performance but in a climate of insubordination, fostered by Huckstadt’s own management style, which presented a serious challenge to any would-be supervisor of the employees in question. Second, and perhaps more potently, it suggests that those complaints were indeed a pretext, not the real reason, for discharging plaintiff. Of course such an inference does not affirmatively establish that his real reason was race- or gender-based animus. But it is more than sufficient to raise a triable issue of fact with respect to the central premise on which the motion for summary judgment rested, and that alone required that the motion be denied.
I acknowledge that there are cases suggesting that even if the employer’s claimed reason is discredited, he may prevail on summary judgment if the discrediting evidence points to a third reason for his actions, which is not itself actionable. I take strenuous issue with this rule. The opposing party on summary judgment is required only to controvert the factual premises on which the motion rests. He is not required, and cannot fairly be required, to affirmatively prove his own entitlement to judgment. That is what trials are for.
An inference that Huckstadt’s stated reasons for firing plaintiff were pretextual is also supported by the many points on which his testimony is directly or indirectly contradicted by hers, giving rise to the possibility that a jury might find him falsus in unius, falsus in omnia (false in one thing, thus false in all). In an effort to show a progressive disciplinary process culminating in discharge, Huckstadt insisted that he “attempted to counsel Ms. Lawal on improving her relationship with staff.” Plaintiff testified flatly to the contrary, i.e., “No such counseling ever took place,” and “neither Mr. Huckstadt, nor [two others named by defendants as doing so] ever ‘counseled’ me on how to improve any such relationships.”
Huckstadt sought to bolster the claim of progressive discipline by testifying that he “demoted” plaintiff in June 2003 by relieving her of her position as Vice President of Finance and Member Services. As of that event, he testified, she was “no longer a vice president.” This testimony was so heavily controverted that it must be disregarded entirely for purposes of summary judgment. Plaintiff testified that no one ever informed her of any “demot[ion],” or that she had been relieved of her position. Nor did Huckstadt recall telling her he was relieving her of her title. He was unable to recall any documentation or memorialization of the supposed demotion. Indeed the October 3, 2003, email to plaintiff from attorney Whitman, in which he confirmed plaintiff’s discharge effective at the end of that month, contained the recital, “As of Oct 2, you are no longer a VP and have only consulting duties . . . .” (Italics added.)
Also in inferential conflict with Huckstadt’s account of the demotion is the sequence of events surrounding the attempted renegotiation of plaintiff’s employment contract with the company, as reflected in documentary evidence. Huckstadt averred that he relieved plaintiff of her staff management responsibilities in “late June or early July 2003.” In his deposition he stated more definitely that this occurred when he “got back in June.” But on June 20 he forwarded to plaintiff, through Attorney Whitman, a draft letter agreement stating that he was “very interested in having you [i.e., plaintiff] remain an important part of the 501(c) management team.” Under the proposal, the relationship would be terminable for cause, or without cause on three months’ notice with an additional severance payment. Apparently the only unresolved issue was that plaintiff sought a larger severance payment while Huckstadt preferred to increase certain “retention payments” called for under the proposal. On July 3, however, Huckstadt informed plaintiff, through Attorney Whitman, that he was, “for the moment, withdrawing his proposal of additional employment terms and compensation.” Plaintiff replied that it “sounds like things have changed since we spoke yesterday afternoon,” adding that she would “love to hear what happened once you have the information.” As of July 7, Whitman was still reporting to plaintiff that he “d[id]n’t have any real information on this issue.”
In deposition Huckstadt said that the contract offer was made “[a]t the same time” as his demotion of plaintiff. A jury could find this implausible on its face, as well as directly contradicting his reason for ultimately terminating her employment, as stated in his declaration in support of summary judgment, which was that some time after relieving her of staff management duties, he “determined that it would be bad for the company to return Ms. Lawal to a staff management role and that if she was not managing staff, I could not justify paying her a vice president’s salary . . . . Accordingly, I terminated her employment . . . .” Yet here he was, according to his deposition testimony, offering to continue her salary, with added inducements, at the very time he was relieving her of the duties that supposedly justified paying that salary. Later in the deposition he acknowledged some inconsistency in this account, stating that the June 20 letter “would seem to indicate we had not modified her position to disinclude management” when the letter was written, but adding “I can hardly conclude that reading it here today.” Again, the vagueness of his testimony supports a wide variety of inferences, including that the claim of a management problem underlying plaintiff’s discharge is contrived.
Huckstadt offered at least two other explanations for his rather baffling conduct in offering plaintiff a new and improved contract at the very time that he was supposedly demoting her for serious performance deficiencies. Neither is very plausible. First he suggested that the offer was not intended to actually secure plaintiff’s employment with the company on a long-term basis, but rather to “determine her level of commitment to staying on.” Then he said that, while he had “very serious concerns” about plaintiff’s management style at the time of the letter, he also had “some optimism with counseling and working with her that it might be reconcilable . . ., and that’s what I think this [offer] was designed to do, was to give us some time to see if we could accomplish that.” But why would an employer offer a new and improved contract to an unsatisfactory employee just to find out the degree of her “commitment to staying on?” Why make such an offer just to correct her supposed deficiencies? If the offer was made for either reason, why was it withdrawn? Moreover, how can that rationale be reconciled with plaintiff’s testimony that no counseling whatever was given, before or after her supposed demotion? If defendants were so intent upon counseling plaintiff with respect to management deficiencies, why did they fail to do so—or if they did so, why is there no record of it? These of course are questions for a jury, not for judges examining a cold paper record. A factfinder might be able to reconcile all of the shifting explanations offered by defendants and sustain their version of events. But that is not the office of a court considering a motion for summary judgment.
“ Stray Remarks”
The trial court found that plaintiff failed to “establish[] or even suggest[] a causal connection between Mr. Huckstadt’s stray remarks regarding race and gender to plaintiff’s termination.” On its face this statement misses the point, which is not whether plaintiff’s discharge was causally connected to Huckstadt’s “remarks” but whether it was the proximate result of discriminatory animus. Racist or sexist remarks, whether “stray” or not, are evidence of such animus. Presumably the court meant to say that defendants’ “stray remarks” were insufficient to raise a triable issue as to the existence of such animus, the required causal relationship between it and the plaintiff’s discharge, or both.
The court thus invoked the so-called “stray remarks” rule. It is difficult to say exactly what this rule is, except that racist or sexist remarks will be deemed insufficient by some courts to support denial of summary judgment if they are deemed “stray.” I don’t know how to view such a rule as anything other than the assumption by the court of a factfinding role. The point is illustrated in Horn v. Cushman (1999) 72 Cal.App.4th 798, 809-810, where the court wrote that an isolated and ambiguous comment “was at most a ‘stray’ ageist remark and is entitled to virtually no weight in considering whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus.” (Italics added.) This statement is all the more remarkable because the opinion elsewhere acknowledges that on summary judgment, “weighing of the evidence” is “prohibited.” (Id. at p. 807.)
Admittedly the remark there furnished at best an extremely attenuated inference of discriminatory animus. A co-employee complained to the plaintiff that she had not received a certain document from him in time, and when he explained that he had sent it by overnight mail, she replied, “ ‘[t]his is 1994, haven’t you ever heard of a fax before?’ ” (Horn v. Cushman, supra, 72 Cal.App.4th at p. 803.) If this statement was insufficient to raise a triable issue as to the existence of discriminatory animus, or its role in the plaintiff’s discharge, that conclusion owes less to the remark’s “stray”-ness than to its extreme equivocality and the fact that the person uttering it was not instrumental in the plaintiff’s discharge. (Id. at p. 809)
I simply cannot agree with suggestions that a “single, isolated discriminatory comment” is categorically insufficient to avoid summary judgment. (Gagne v. Northwestern Nat. Ins. Co. (6th Cir. 1989) 881 F.2d 309, 314-316.) If an employer says, “I’m through trying to work with women,” and at some point thereafter fires the female plaintiff, that evidence alone is more than sufficient, in my opinion, to preclude summary judgment. To banish the employer’s comment into the realm of non-evidence merely because the employer usually had more sense than to reveal such feelings repudiates two central principles: (1) facts can be established by reasonable inferences from other facts, and (2) whether to draw such inferences is for a factfinder to decide at trial.
Nor can I agree that “stray” remarks are insufficient to raise a triable issue of fact when they are “unrelated to the decisional process.” (Smith v. Firestone Tire and Rubber Co. (7th Cir. 1989) 875 F.2d 1325, 1330.) If a causal link can be inferred from the evidence as a whole, a single isolated remark may certainly suffice to establish the presence of discriminatory animus. There might well be cases in which the remarks at issue, in context of the evidence as a whole, furnish such weak evidence that a verdict resting on them cannot be sustained. But such judgments must be made on a case-by-case basis in light of the entire record, and on summary judgment—as distinct from motion for nonsuit, directed verdict, or judgment n.o.v.—the sole question is whether they support an inference that the challenged action was actuated by discriminatory animus. Their “weight” as evidence cannot enter into the question. Insofar as references to “stray” evidence serve to plaster over an impermissible judgment about probative weight, I would abjure them.
Reply Evidence
As the lead opinion acknowledges, there is authority for the proposition that the trial court may not consider evidence offered by the movant in reply to the opposition to a motion for summary judgment. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312.) I believe that case is well reasoned on this point and should be followed. The lead opinion does not disagree in principle, but seeks to narrow it by noting that the court may consider “all admissible evidence of which the opposing party has had notice and the opportunity to respond.” (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098.) The lead opinion goes on to conclude that the court may consider newly proffered excerpts of depositions, provided other portions of the same depositions were filed with the motion. I cannot subscribe to this reasoning. A party has not had “notice and an opportunity to respond” to testimony just because he had notice and opportunity to respond to other testimony by the same witness. In my opinion, no evidence offered by the movant may be considered, other than that accompanying the moving papers, unless the opposing party is expressly offered a continuance of the motion for purposes of meeting the newly offered evidence. Even then, of course, the trial court would act within its discretion in refusing to grant the continuance and disregarding the new evidence. I would permit its consideration, in the court’s discretion and under the conditions stated, only to accommodate the exceedingly rare situation in which the proffered additional evidence appears plainly dispositive in light of the opposition papers, but did not so appear at the time the motion was filed. Any other rule is a prescription for still more of the tactical shenanigans that have come to sorely burden and largely subvert the summary judgment procedure.
I would reverse the judgment.
In other instances (for example, at defense fact statements 4, 5, 8, and 24), plaintiff attacked specific items of evidence offered in support of an undisputed fact statement, but not others. Similarly, plaintiff at times objected to particular statements or supporting evidence, even though unobjectionable evidence elsewhere in the record established the fact in question. Thus, for example, plaintiff interposed personal knowledge objections to testimony by Marfell and Claitor, offered in support of defense fact statement 8 (that plaintiff’s management style was “not compatible with the way Huckstadt wanted to run his company”). While the two witnesses in fact lacked personal knowledge of how Huckstadt wanted to run the company, admissible portions of the record establish without controversy that plaintiff and Huckstadt had incompatible management styles. Indeed, plaintiff herself declared that she was “called upon … to make tough employment decisions and run [the company] like a business and not like a ‘family’….” In circumstances like this, where unobjectionable evidence supports the proffered fact, a ruling on the objections is unnecessary.
Simple logic dictates that failure to recall an event may tend to prove that the event did not occur, depending on whether it was of such a nature that a factfinder could rationally find the witness would have been likely to remember it. To take an obvious example, if it is asserted that lightning struck a tree at a certain time and place, and someone who was present at that time and place testifies that he does not remember any lightning strike, the absence of recollection tends logically to prove that lightning did not strike the tree. Indeed the words “I don’t remember that” are not always intended to convey a truly blank memory; they may operate as a non-confrontational way of contradicting another. Here I think it was up to a jury to decide what Grose meant by her testimony and whether, if her memory was truly blank, she would have been likely to remember reports of employee complaints had then been communicated to her as Huckstadt testified. There is ample basis for a factfinder to conclude that her testimony on this point was evidence of their non-occurrence.
Of course, a finding that Huckstadt fired plaintiff to save himself from paying spousal support would not subject him to liability for employment discrimination. But it does cast doubt on his claim that he was seriously concerned about plaintiff’s competence as a people manager. A jury could find that so long as he was not personally managing the company, Huckstadt was willing to tolerate the risk that Terri might quit over her conflicts with plaintiff. It was only after Huckstadt returned to the office personally that employee complaints were elevated to the status of grounds to discharge plaintiff. Coupled with evidence that no serious attempt at correcting these problems was made, the evidence supports an inference that Huckstadt’s real reason for firing plaintiff was his problems with women in positions of authority.