Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV014637.
CANTIL-SAKAUYE, J.
Plaintiff Jennifer J. Abraham filed an action against her employer, the State of California (State), and five of her supervisors for employment discrimination, harassment, retaliation, and violation of her civil rights, all related to a claim that defendants improperly refused to promote her. The trial court sustained without leave to amend defendants’ demurrers to plaintiff’s causes of action for violation of her rights under title 42 of the United States Code section 1981 (section 1981) and for harassment under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)). The trial court granted defendants’ motion for summary adjudication of plaintiff’s retaliation claim under the FEHA. At trial, the trial court granted nonsuit on plaintiff’s claim of violation of her rights under 42 United States Code section 1983 (section 1983) against the individual defendants. The jury returned a verdict for defendants on plaintiff’s remaining claim for discrimination under the FEHA. In a special verdict finding, the jury found the State did not refuse plaintiff a promotion.
Plaintiff alleged harassment that created a hostile work environment in violation of both the FEHA and Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (Title VII). The parties and the trial court treated the cause of action as being based solely on the FEHA and on appeal, the parties argue only the FEHA. Given this posture, we too will limit our review to the FEHA.
The trial court had previously sustained defendants’ demurrers to plaintiff’s claim for violation of her rights under section 1983 as to the State. Plaintiff does not challenge such ruling on appeal.
On appeal, plaintiff does not challenge the jury’s verdict or its special finding that the State did not refuse plaintiff a promotion. Instead, plaintiff claims on appeal that the trial court erred in its rulings on her other causes of action. We shall affirm the judgment.
BACKGROUND
Plaintiff is an African-American female employed by the State with the California Youth Authority (CYA). The heart of her first amended complaint alleges that she “was hired as a Security Officer, employed by defendant STATE at Karl Holton Youth Correction Facility, in Stockton, California[,]” and that she has “filed and qualified for the position of Lieutenant and/or Captain on at least 25 occasions,... has participated in interviews, and has been rated good or excellent[,]” but that on each of these occasions “she has been denied opportunities to interview; told that she was not qualified; that she was not liked; that she could not get along with others; that defendant STATE could hire whomever it wanted; that defendant STATE was not required to interview for positions offered; that male employees need not interview to be promoted, but as a female, she was required to interview; that she lacked training, but that training need not be offered to all employees and particularly not to female employees.” Plaintiff alleges “[t]he position of Lieutenant, on each occasion, until August 2000, [when plaintiff was promoted to Lieutenant] was offered to someone younger; or someone male; or someone with less experience than plaintiff; or someone who was Hispanic or Mexican-American, or someone [who] was actually trained by plaintiff, or someone who was told prior to any oral interview that he had been selected[.]” Based on these facts, plaintiff alleged defendants had discriminated against her and harassed her because of her sex, her race/color, or her national origin/ancestry, that defendants had retaliated against her for a protected activity, and that they had deprived her of her civil rights under federal law.
CYA is now known as the Division of Juvenile Justice of the California Department of Corrections and Rehabilitation.
On June 6, 2000, plaintiff filed an Equal Employment Opportunity (EEO) discrimination complaint with the CYA. She filed a discrimination complaint with the Department of Fair Employment and Housing (DFEH) on February 9, 2001. She filed her civil action on July 26, 2001.
DISCUSSION
I.
The Trial Court Properly Sustained Without Leave to Amend the Defendant’s Demurrer to Plaintiff’s Claim Under Section 1981
The trial court sustained without leave to amend defendants’ demurrer to plaintiff’s claim under section 1981. On review of an order sustaining a demurrer without leave to amend, we exercise our independent judgment as to whether the complaint states a cause of action as a matter of law (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790), giving the complaint a reasonable interpretation and treating the demurrer as admitting all properly pled material facts. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]” (42 U.S.C. § 1981(a).)
“Among the many statutes that combat racial discrimination, [section] 1981, originally [section] 1 of the Civil Rights Act of 1866, 14 Stat. 27, has a specific function: It protects the equal right of ‘all persons within the jurisdiction of the United States’ to ‘make and enforce contracts’ without respect to race.” (Domino’s Pizza, Inc. v. McDonald (2006) 546 U.S. 470, 474-475 [163 L.Ed.2d 1069, 1075] (Domino’s Pizza).) “[A] plaintiff cannot state a claim under [section] 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes “‘to make and enforce.’” (Id. at pp. 479-480 [163 L.Ed.2d at p. 1078].)
Defendants demurred to plaintiff’s section 1981 cause of action on the basis that she had not alleged and could not allege a contractual employment relationship with the State because California state employees hold their positions by statute, not contract. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24; Boren v. State Personnel Bd. (1951) 37 Cal.2d 634, 641.) Agreeing with defendants, the trial court entered an order sustaining defendants’ demurrer without leave to amend.
On appeal plaintiff claims the trial court erred because (1) section 1981 reaches discrimination by both public and private employers and (2) a contract of employment is not required to enforce her rights under section 1981.
Plaintiff’s first point fails to address the issue raised by defendants’ demurrer, which was not whether section 1981 is applicable to public employers, but whether plaintiff has a contractual basis for her claim against her specific public employer--the State of California. Plaintiff’s second point ignores the United States Supreme Court’s interpretation of section 1981 in Domino’s Pizza, supra, 546 U.S. at pages 474-475 [163 L.Ed.2d at p. 1075] and relies on a case (Saint Frances College v. Al-Khazraji (1987) 481 U.S. 604 [95 L.Ed.2d 582) where there was no issue regarding the contractual foundation of the plaintiff’s section 1981 claim since the plaintiff sued for discrimination after he was denied tenure and his employment contract ended. (Id. at pp. 606-607 [95 L.Ed.2d at pp. 587-588].) This is not to say it is clear that section 1981 is inapplicable to California state employees. At least one federal district court has found section 1981 claims viable despite a plaintiff’s statutorily held employment with the State of California. (Peterson v. State of Cal. Dept. of Corrections and Rehabilitation (E.D. Cal. 2006) 451 F.Supp.2d 1092, 1100-1104.)
However, we do not need to undertake the analysis necessary to resolve the issue in this case. “[E]rror alone does not warrant reversal. ‘It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.’ [Citation.] ‘“The burden is on the appellant, not alone to show error, but to show injury from the error.”’ [Citation.] ‘Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.’ [Citation.] ‘Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.’ [Citation.] A miscarriage of justice is not found ‘unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.’ [Citation.]” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822-823.)
Assuming, without deciding, that plaintiff could assert a section 1981 claim against defendants, the record reflects plaintiff would not have obtained a more favorable result had her section 1981 claim been allowed to go to trial. The jury made a special verdict finding that the State did not refuse plaintiff a promotion. The State’s refusal to promote plaintiff was the factual predicate and a necessary element of proof for her section 1981 discrimination claim. Plaintiff has not met her burden to show prejudicial error in the trial court’s ruling on defendants’ demurrer to her section 1981 cause of action.
Analysis of employment discrimination claims under section 1981 generally follow the same legal standards used in analyzing claims of racial discrimination under Title VII. (Metoyer v. Chassman (9th Cir. 2007) 504 F.3d 919, 930.) Both require proof of discriminatory treatment. (Fonseca v. Sysco Food Services of Arizona, Inc. (9th Cir. 2004) 374 F.3d 840, 850.) The discrimination claimed here by plaintiff was the denial of promotion, the factual claim rejected by the jury.
II.
The Trial Court Properly Sustained Without Leave to Amend Defendant’s Demurrer to Plaintiff’s Claim Of Harassment Under The FEHA
Plaintiff argues the trial court erred when it sustained without leave to amend defendants’ demurrer to her cause of action alleging harassment in violation of the FEHA. (Cal. Gov. Code, § 12940, subd. (j)(1).) Plaintiff claims the trial court wrongly weighed the evidence, rejected her alleged facts and failed to apply the specific definition in the California Code of Regulations that defines harassment to include verbal harassment. (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A) [harassment includes, but is not limited to “verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the [FEHA]”].) We conclude the trial court did not err. Plaintiff’s first amended complaint simply does not allege sufficient facts to support a claim of harassment in violation of the FEHA.
Plaintiff’s first amended complaint alleged defendants’ conduct was harassment in the form of a hostile work environment. She specifically alleged the individual defendants “denied [her] opportunities to interview for promotion, telling [her] that she was not qualified, or that she could not apply or be promoted because she was not liked, or that she could not get along with others; that the STATE could hire whomever it wanted, and did not have to interview [her]; that she lacked education, while engaging in word of mouth selections and promotions of younger males, and Hispanic or Mexican-Americans.”
We accept for purposes of demurrer (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967) that the defendants did deny plaintiff opportunities to interview for promotion and that they did tell plaintiff “she was not qualified,” that “she was not liked,” that “she could not get along with others,” that “the STATE could hire whomever it wanted,” that they were “not required to interview [her],” and that “she lacked training[.]” While harassment in violation of the FEHA may be found in verbal abuse (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A)), these particular verbal comments do not give rise to a claim for harassment on the basis of one of the protected classes identified in the FEHA. (Gov. Code, § 12940, subd. (j)(1) [race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation].) The complaint fails to allege how these comments to plaintiff were based on her status in one or more of the classes protected by the FEHA.
Moreover, this category of comments, directed at plaintiff’s alleged lack of fitness for the promotion, is not harassment under FEHA. As the court in Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, at page 63, explained: “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” Therefore, “commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” (Id. at pp. 64-65, italics added.)
The comments alleged by plaintiff were entirely related to her application for promotion and/or were in the nature of performance evaluations. While they were subject to being reviewed retrospectively to determine if they were discriminatory, they were not harassment under the FEHA. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 63-65.) The trial court properly sustained without leave to amend defendants’ demurrer to plaintiff’s cause of action for harassment.
III.
The Trial Court Properly Granted Summary Adjudication of Plaintiff’s Claim For Retaliation Under The FEHA
The “FEHA makes it unlawful ‘[f]or any employer... or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].’ (§ 12940, subd. (h).) In order to establish a prima facie claim of retaliation under this section, a plaintiff must show (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action.” (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1252, citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
The trial court granted summary adjudication of plaintiff’s claim for retaliation “in that there is no evidence of a triable issue of fact concerning retaliation for having filed the internal EEO claim...; all of the alleged material retaliatory conduct took place before the claim was filed.” That is, the trial court concluded the adverse employment actions alleged by plaintiff (the denial of promotions) all occurred before the first protected activity of plaintiff (the EEO complaint filed on June 6, 2000). Thus, there was no “retaliation” for the complaint as a matter of law.
The standard of review for a trial court’s decision to grant summary adjudication is well established. “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).) A moving defendant has met its burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (o).) “Once the defendant meets this burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto,’ supported by evidence of specific facts and not mere allegations of the pleadings. [Citations.]” (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 160, quoting Code Civ. Proc., § 437c, subd. (p)(2).)
We independently review an order granting summary adjudication. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 87.) In determining whether there is a triable issue of material fact, we consider all the evidence set forth by the parties except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “[W]e strictly construe the moving party’s evidence and liberally construe the opposing party’s evidence.” (Sababin v. Superior Court, supra, at p. 88.)
Although summary adjudication review is de novo, “this de novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116; accord, Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
In contending the trial court erred in granting summary adjudication of her retaliation cause of action, plaintiff attempts to show she made complaints (engaged in protected activity) before the denials of promotion (adverse employment action) contrary to the finding of the trial court. She asserts in her brief that she “made numerous complaints for failure to promote... during the period 1995 through 2000 associated with applications for promotion which she alleged were denied based on her sex, her race/color, because of her national origin/ancestry and her gender.” In support of her claim, plaintiff cites us to 11 pages of an excerpt of her deposition transcript submitted in connection with her opposition to defendants’ motion for summary judgment/summary adjudication. Such pages establish only that plaintiff intended to cover a number of earlier promotion denials in her EEO complaint filed in 2000 and/or her DFEH complaint filed in 2001. The pages do not support plaintiff’s claim that she made previous complaints in the period of 1995 through 2000 that earlier promotion denials were discriminatory. Thus, the evidence cited does not establish a triable issue of “retaliation” for her complaints.
Plaintiff also cites us to 185 pages of her deposition testimony and declaration in opposition to defendants’ motion for summary judgment/adjudication as “establish[ing] a long sequence of events during the involved periods.” This vague statement has no bearing on whether any alleged retaliatory conduct took place after plaintiff engaged in any protected activity. Plaintiff does not explain the nature or significance of any such sequence of events or how the evidence is applicable to the timing question at issue. We will not guess. An argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Plaintiff next quotes a portion of her first amended complaint in which she alleged defendants’ actions “were in retaliation for plaintiff’s frequent applications for promotion, a protected activity, and the fact that plaintiff complained that she was fully qualified to be promoted to Lieutenant....”
Plaintiff cites no authority for her claim that applying for promotion is a protected activity under the FEHA. It is not. Government Code section 12940, subdivision (h) forbids retaliation “because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” Further clarification of what constitutes “protected activity” is provided in section 7287.8 of title 2 of the California Code of Regulations. Such section provides, in pertinent part: “(a)(1) Opposition to practices prohibited by the Act includes, but is not limited to: [¶] (A) Seeking the advice of the Department [Department of Fair Employment and Housing] or Commission [Fair Employment and Housing Commission],...; [¶] (B) Assisting or advising any person in seeking the advice of the Department or Commission,...; [¶] (C) Opposing employment practices which an individual reasonably believes to exist and believes to be a violation of the Act; [¶] (D) Participating in an activity which is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or [¶] (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act. [¶] (2) Assistance with or participation in the proceedings of the Commission or Department includes, but is not limited to: [¶] (A) Contacting, communicating with or participating in the proceedings of the Department or Commission due to a good faith belief that the Act has been violated; or [¶] (B) Involvement as a potential witness which an employer or other covered entity perceives as participation in an activity of the Department or the Commission.” (Cal. Code Regs., tit. 2, § 7287.8, subd. (a).) Applying for a promotion falls within none of these categories.
Nor does it assist plaintiff that she alleged she “complained that she was fully qualified to be promoted to Lieutenant....” A plaintiff “may not rely upon the mere allegations... of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action[.]” (Code Civ. Proc., § 437c, subd. (p)(2).)
Plaintiff continues her appellate brief by asserting “[t]he trial court failed to consider [her] evidence and the totality of the circumstances of [her] retaliation claim or give effect to the continuing violations doctrine for alleged retaliatory acts.” She quotes at length from Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th 1028, regarding what constitutes an adverse employment action, and then notes the United States Supreme Court has determined that section 1981 encompasses retaliation claims in CBOCS West, Inc. v. Humphries (2008) __ U.S. __ [170 L.Ed.2d 864]. Plaintiff does not point us to any evidence the trial court failed to consider. She does not explain how it failed to view the totality of the circumstances. And the principles of law to which she cites us are irrelevant to the point at issue--whether there was any triable issue of material fact that the alleged denials of promotion were in retaliation for a protected activity by plaintiff in violation of the FEHA.
Plaintiff has not met her appellate burden to affirmatively demonstrate error in the trial court’s grant of summary adjudication of her retaliation cause of action. (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116; Christoff v. Union Pacific Railroad Co., supra, 134 Cal.App.4th at p. 125.)
IV.
The Trial Court Properly Granted Nonsuit of Plaintiff’s Claim Of Discrimination Under Section 1983
Defendants sought summary adjudication of plaintiff’s section 1983 cause of action for discrimination based, in part, on the statute of limitations, arguing that plaintiff was last denied promotion to lieutenant in June 2000 more than one year prior to the filing of her civil complaint on July 26, 2001. The trial court denied defendants’ motion finding as to the statute of limitations that “triable issues of fact remain as to the application of the ‘continuing violation’ doctrine to the earlier conduct.”
The applicable statute of limitations period for a section 1983 action is the forum state’s limitation period for personal injury actions. (Knox v. Davis (9th Cir. 2001) 260 F.3d 1009, 1012-1013.) California’s statute of limitations for personal injury actions at the time plaintiff’s action was filed was one year. (Former Code Civ. Proc., § 340, subd. (3); Stats. 1982, ch. 517, § 97.)
Prior to trial defendants filed a motion in limine seeking to exclude all evidence of plaintiff’s section 1983 claims, arguing again they were barred by the statute of limitations. The trial court denied the motion in limine finding it was a factual issue the jury had to determine.
At the close of plaintiff’s case-in-chief, defendants moved for nonsuit on the basis plaintiff had failed to proffer evidence that she was denied a promotion within the applicable statute of limitations. The trial court determined “that an event did not occur within the one-year period. And so the Section 1983--42 USC 1983 cause of action is not viable. And if that is the only cause of action as to the individual defendants, then the individual defendants are dismissed from the case.”
On appeal, plaintiff claims the trial court erred because its prior rulings on defendants’ motion for summary adjudication and motion in limine were “binding” on defendants as a matter of law. Not so. A motion for summary judgment or summary adjudication considers whether a triable issue of material fact exists based on the evidence before the court at that time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (2007) § 10:364, p. 10-129.) The denial of a motion for summary judgment or summary adjudication does not preclude a directed verdict in favor of the moving party later. (Ibid.) By analogy, it does not preclude nonsuit if the trial court determines the evidence presented by the plaintiff at trial is insufficient as a matter of law to permit a jury to find in plaintiff’s favor. (See Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1065; Code Civ. Proc., § 581c, subd. (a).)
By similar reasoning, a pretrial motion in limine based on an anticipated state of evidence does not preclude a motion for nonsuit based on the actual evidence produced.
On the merits of the motion, plaintiff contends the trial court erred in granting nonsuit because there existed continuing discriminatory conduct by the State, which continued until plaintiff’s promotion to lieutenant in August 2000. In response, defendants contend: the continuing violation doctrine does not apply to discrete acts like denial of promotions (National Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101, 114 [153 L.Ed.2d 106, 122]); even if the doctrine applied to denial of promotions, plaintiff cannot demonstrate one event occurred within the limitations period (id. at p. 105 [153 L.Ed.2d at p. 117]); and even if the trial court erred in dismissing plaintiff’s section 1983 action, plaintiff cannot demonstrate she was harmed.
Although the record on appeal contains a reporter’s transcript of the trial, we note plaintiff fails to cite any evidence admitted at trial to support her position. If we were to reach the issue, this failure would itself doom plaintiff’s argument. “‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849.)
Agreeing with defendants’ last contention, we need not consider the others. Given the jury’s specific finding on plaintiff’s FEHA discrimination claim that defendants did not refuse to promote plaintiff, it is clear she would not have obtained a more favorable result had her section 1983 discrimination claim been allowed to go to trial.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SIMS, Acting P. J., HULL, J.