Opinion
C079961
09-18-2017
MICHAEL CAYTON, Plaintiff and Appellant, v. STOCKTON UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 39201200282720CUOESTK)
Michael Cayton sued the Stockton Unified School District (the District), alleging four violations of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)). Specifically, Cayton asserted causes of action for racial discrimination, gender discrimination, failure to prevent discrimination/harassment, and retaliation. The trial court granted the District's motion for summary judgment. Cayton appeals from the judgment entered thereon.
We conclude Cayton has forfeited his challenge to the trial court's ruling on the summary judgment motion by failing to cite to any evidence in the record supportive of his claim triable issues of material fact exist. While it was the District's burden in the trial court to persuade that court to grant the summary judgment motion, on appeal the burden is on Cayton, as the appellant, to persuade us the trial court erred in granting the motion. An appellant cannot carry that burden without citing to evidence in the appellate record. Simply citing to the separate statement is not enough. This is because "a separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the supporting evidence." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (Jackson).) For this reason, and because Cayton's argument on appeal is little more than a challenge to the District to show the trial court properly granted its motion (see Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 (Guthrey), we conclude Cayton's appellate contentions are forfeited and affirm the judgment.
BACKGROUND
The Complaint
Cayton's complaint initially asserted 14 causes of action, including four alleged violations of the FEHA: racial discrimination, gender discrimination, failure to prevent discrimination/harassment, and retaliation. The trial court sustained the District's demurrer to the 10 non-FEHA causes of action without leave to amend. Cayton does not challenge this ruling on appeal.
With respect to the FEHA causes of action, Cayton alleged the District discriminated against him on the basis of his race (African American) and gender (male) when it "demoted" him from an elementary school assistant principal position to his former teaching position in July 2009 while selecting "non-[B]lack (mostly White and Hispanic) candidates with less seniority and experience" to fill available principal and assistant principal positions. Cayton also alleged he filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) in October 2009. In exchange for withdrawing this charge, the District placed Cayton in an assistant principal position for the 2010-2011 school year. According to the complaint, however, the filing of the EEOC charge prompted certain retaliatory actions on the part of the District, such as issuing him a letter of reprimand the same month and giving him a negative evaluation for his performance as an assistant principal during the 2010-2011 school year. The complaint also alleged Cayton filed a new EEOC charge in March 2011, after he discovered he was the only assistant principal in the District to receive an evaluation that year (and was also the only African-American male assistant principal), the District did not follow "the correct method of giving [him] an evaluation," and the letter of reprimand was not removed from his employee file in accordance with their agreement for withdrawal of the initial EEOC charge. The complaint further alleged Cayton was notified the following month he was "again being demoted" to a teaching position. In both July and October 2011, according to the complaint, Cayton applied for assistant principal positions with the District and was not called in for an interview. Instead, each time, the District hired five assistant principals "with no experience — none of them African American males."
The Summary Judgment Motion
The District moved for summary judgment. The District submitted evidence, in the form of a declaration signed by Kirk Nicholas, Assistant Superintendent of Elementary Education from 2008 to 2010, that Cayton was "reassigned as a teacher in a classroom as part of a district-wide reduction in force" that became necessary "for budgetary reasons that impacted public agencies, including school districts, throughout the State of California." As Nicholas explained: "[F]ormer Superintendent, Anthony Amato, asked his Executive Cabinet, of which I was a member, to rank all elementary school assistant principals due to impending layoffs due to the recession and resulting budgetary constraints. Approximately 35 assistant principals came in for interviews which were conducted by a panel of administrators that consisted of a wide variety of ages and races. [Cayton] received one of the lowest scores on that interview." However, as explained by Daniel Wright, who held various positions with the District during the relevant time period at issue in this case, including director of elementary education and assistant superintendent of elementary education, Cayton's seniority with the District qualified him to return to his former teaching position rather than being laid off.
The District also produced evidence it employed seven African-American principals and/or assistant principals at the elementary school level in the 2008-2009 school year, and four African-American principals and/or assistant principals at the high school level that year. The following school year saw a nearly 60-percent reduction in assistant principals at both the elementary and high school levels. That year, the District employed three African-American principals and/or assistant principals at each level.
The District also submitted evidence that the author of the letter of reprimand, Vendetta Brown, who was the principal at the elementary school for which Cayton served as assistant principal during the 2009-2010 school year, and who was also African American, issued the written reprimand because Cayton made sexual advances to two female coworkers, received a verbal reprimand after the first such incident, and thereafter committed insubordination by doing so again. The District also produced evidence the negative performance evaluation was not prepared for any discriminatory reason, but rather the authors of that evaluation, Olivia Castillo and Adrienne Machado, who were the principals at the two elementary schools for which Cayton served as assistant principal during the 2010-2011 school year, "exercised their professional judgment that [Cayton's] work product and level of dedication were substandard."
The District further produced evidence the August 2010 settlement of Cayton's EEOC charge "expressly indicated that his subsequent assignment to an assistant principal position was temporary and that the [District] did not have any legal or contractual obligation to continue [him] in an assistant principal position beyond the 2010-2011 school year." The District also produced evidence that Cayton's interview scores in May 2011, when he interviewed for a principal position, placed him second lowest in the pool of 17 applicants.
With respect to Cayton's discrimination claims, the District argued the foregoing evidence established a nondiscriminatory reason for Cayton's reassignment to a teaching position, and further argued such a reassignment does not constitute an "adverse employment action" under the FEHA. As the District summed up its decision, "the fact of the matter — which is beyond debate — is that [the District] was greatly affected by a statewide recession of catastrophic proportions" that placed Cayton "at risk of being laid off but for his seniority. Thus, owing to his seniority, he was reassigned to a classroom." The same reassignment occurred for the same reasons after the settlement of the EEOC charge resulted in Cayton being returned to an assistant principal position for the 2010-2011 school year.
With respect to Cayton's failure to prevent discrimination/harassment claim, the District noted that in response to a special interrogatory specifically addressing the basis for this claim, Cayton claimed the District "never met with [him] to discuss steps to prevent discrimination or harassment on basis of race and gender, this conversation never took place in the settlement agreement as well." In addition to the foregoing argument that there was no racial or gender discrimination, the District argued there was likewise no evidence of harassment for the District to have prevented. The District also submitted evidence Wright was never asked to meet with Cayton to discuss any concerns regarding discrimination, but he would have done so had Cayton asked.
Finally, with respect to the retaliation claim, the District argued there was no adverse employment action following Cayton's filing of his EEOC charge. Instead, Cayton was "simply reassigned to a classroom due to a state wide recession rather than being laid off." The District also submitted evidence the written reprimand from Brown was actually issued one month before Cayton filed his EEOC charge, and therefore could not have been issued in retaliation for that action. The District further submitted evidence that Cayton, contrary to the allegations in his complaint, did interview for assistant principal positions in both July and October 2011. The District argued it therefore "did not retaliate against [Cayton] as he continued to be invited to job interviews even after [he] filed both EEOC complaints."
Cayton's Opposition
In opposition to the summary judgment motion, with respect to his discrimination claims, Cayton argued he submitted evidence establishing a prima facie case of unlawful discrimination and there was a triable issue of material fact regarding whether the District's nondiscriminatory reason for his "demotion," i.e., budget cuts and substandard job performance, was merely "pretext for illegal discrimination." With respect to the latter argument, Cayton continued: "[T]here is substantial direct evidence of [the District's] falsifying the reasons for [Cayton's] demotion and refusal to promote and instead replacing him with people of another race. [¶] Circumstantial evidence also shows the pretextual nature of the demotion. [Cayton] was also advised that [Wright] did not like him by Michael Lyons, who sat on an interview panel with [Wright] for a position that [Cayton] was applying for and was alarmed at the treatment of African Americans by [the District]. Lyons also confided that [Cayton] received the highest score of the candidates and still was not selected. Similarly, for the 2009-2010 school year, [Wright] could not identify a single African American Assistant Principal that was hired. [¶] It is certainly unbelievable that a 16 year employee who was promoted to Assistant Principal and Principal would be demoted for only budgetary reasons — and never promoted back when he was competing with others without the same level of experience in the job, with no negative reviews justifying the demotion or refusal to promote, facts which themselves are contested and are triable issues of fact." Cayton makes this identical argument, word-for-word, in his appellate briefing. However, as we explain in the discussion portion of the opinion, he does not cite to any of this purported evidence in the appellate record.
With respect to his failure to prevent discrimination/harassment and retaliation claims, apparently relying on the same purported evidence, Cayton argued, "the regular occurrence of failure to promote [Cayton], and retaliating against [him] by giving him a pretextual evaluation after he complained to the EEOC about his treatment, was sufficiently pervasive . . . to create a hostile or offensive work environment" that the District should have prevented. Cayton also argued in his allegations in the complaint that "he was repeatedly subjected to retaliatory and discriminatory treatment" by the District after "complaining about discrimination to the EEOC and [the District]" also "constitutes evidence of retaliation," and therefore "summary judgment is precluded on this issue as well."
Trial Court Decision
The trial court granted the summary judgment motion, explaining: "[Cayton] produced no evidence from which a reasonable factfinder can infer that [the District's] true reason for demoting [him] was that he was a man or that he was [African American]." Finding there to be no evidence of discrimination, the trial court also concluded the District "cannot be held liable for failing to prevent discrimination." With respect to failing to prevent harassment, the trial court found: "There is no evidence submitted to the Court to suggest any harassment of [Cayton]; let alone, harassment for racial or gender reasons. Failing to raise a triable issue to suggest harassment, [Cayton] has equally failed to raise a triable issue to suggest liability for failure to prevent harassment." Finally, with respect to the retaliation claim, the trial court found Cayton's evidence was "not substantial enough to create a triable issue of material fact" and explained: " 'If the employer produces evidence showing a legitimate reason for the adverse employment action, "the presumption of retaliation ' " 'drops out of the picture,' " ' " [citation], and the burden shifts back to the employee to provide 'substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual. [Citations.]" Cayton appeals from this decision.
DISCUSSION
I
Summary Judgment Principles and Appellant's Burden on Appeal
We begin by summarizing several principles that govern the grant and review of summary judgment motions under section 437c of the Code of Civil Procedure.
"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn); Code Civ. Proc., § 437c, subd. (c).) Thus, a defendant moving for summary judgment "bears the burden of persuasion that 'one or more elements of the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subd. (o)(2).) Such a defendant also "bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to [plaintiff] to demonstrate the existence of a triable issue of material fact." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1250.)
On appeal from the entry of summary judgment, "[w]e review the record and the determination of the trial court de novo." (Kahn, supra, 31 Cal.4th at p. 1003.) "While we must liberally construe plaintiff's showing and resolve any doubts about the propriety of a summary judgment in plaintiff's favor, plaintiff's evidence remains subject to careful scrutiny. [Citation.] We can find 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.' [Citation.]" (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433, italics added.) Moreover, we must also keep in mind " '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
II
Forfeiture
The District urges us to affirm the judgment because, aside from one citation to 106 pages of the clerk's transcript, i.e., where Cayton's 106-page separate statement in opposition to the summary judgment motion could be found, the statement of facts contained in the opening brief cites solely to this separate statement by paragraph number, without citing the specific page number of the clerk's transcript where that paragraph could be found. Further, and more troubling, the statement of facts does not cite to the page number of the clerk's transcript where the evidence supporting the purported facts contained in the separate statement could be found. Based on these briefing omissions, the District argues Cayton "has not offered any admissible evidence in support of his arguments." In response, Cayton calls the District's argument "specious" and "disingenuous" noting that he provided the above-mentioned 106-page block citation to the clerk's transcript. As explained herein, we are not persuaded that this singular block citation is sufficient.
Rule 8.204(a)(1)(C) of the California Rules of Court provides, in relevant part, that an appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears."
Undesignated rule references are to the California Rules of Court. --------
" 'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation 'is furnished on a particular point, the court may treat it as waived.' [Citation.]" (Guthrey, supra, 63 Cal.App.4th at p. 1115; see Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [" 'It is not incumbent upon this court to search a record . . . to determine a point raised in this manner' "]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 ["We are not required to search the record to ascertain whether it contains support for [appellant's] contentions"].) This duty "includes providing exact page citations. . . . As a practical matter, the appellate court is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs—e.g., 'C.T. pp. 1-20', which upon examination turns out to be 20 nonsequential pages of deposition testimony. The problem is especially acute when, as here, the appeal is taken from a summary judgment." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205; see also Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Arguing he did not violate these rules, Cayton quotes the last two sentences of a footnote in Jackson, supra, 60 Cal.App.4th 171: "Of course, we do not suggest that citations to a separate statement cannot be helpful. For example, where the separate statement of the party opposing summary judgment indicates that a fact is undisputed, a citation to that page of the separate statement is of valuable assistance." (Id. at p. 178, fn. 4.) While true, the omitted portion of the same footnote makes clear doing only that is not sufficient to comply with the Rules of Court: "Here, both parties repeatedly cite their own 'separate statement' [citation] as the sole support for numerous 'facts.' However, a separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the supporting evidence." (Ibid.) Cayton did not comply with this rule. Moreover, he did not even comply with his preferred portion of the footnote, as he did not cite the specific page in the record when citing to the separate statement, but instead cited to it with one block citation and thereafter by paragraph number within that 106-page block. Finally, not only does the case quoted by Cayton not support his argument, but Cayton does not provide the citation to this case, leaving this court to find it on our own with a legal database word search. This is unacceptable.
The remaining question is one of consequences. Rule 8.204(e)(2) provides that we may, "on [our] own or a party's motion, with or without notice: [¶] (A) Order the brief returned for corrections and refiling within a specified time; [¶] (B) Strike the brief with leave to file a new brief within a specified time; or [¶] (C) Disregard the noncompliance." However, the Advisory Committee Comment to this subdivision notes: "Subdivision (e)(2) does not purport to limit the inherent power of the reviewing court to fashion other sanctions for such noncompliance."
In Jackson, supra, 60 Cal.App.4th 171, the court noted both parties were guilty of violating these briefing rules and went on to decide the appeal on the merits. (Id. at p. 178, fn. 4.) Similarly, in Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107 (Lewis), after noting both parties violated these rules, we resisted the "tempt[ation] to strike both parties' briefs," but warned that "our benevolence in disregarding such defects is wearing thin." (Id. at p. 113, disapproved on another point as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41.) We also noted "that defective statements of fact appear too frequently in appellate briefs" and "it behooves counsel to comply with the rules in order to be better advocates for their clients." (Ibid.) Here, only one party has violated these briefing rules. In such cases, where the noncompliance was not "substantial," courts have "overlooked" it and addressed the merits of the appeal. (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1171, fn. 15; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 989-990.)
The violation in this case is substantial. In Guthrey, supra, 63 Cal.App.4th 1108, the court held the plaintiff waived his contention that the trial court erred by granting the defendant employer's summary judgment motion. The court explained: "Plaintiff contends 'a plethora of admissible evidence' indicates a triable issue of fact exists on his claims of gender discrimination, hostile gender-based harassment, and retaliation. However, plaintiff fails to identify this evidence and where it can be found in the record. . . . [¶] ' " 'Instead of a fair and sincere effort to show that the trial court was wrong, appellant's brief is a mere challenge to respondents to prove that the court was right.' " ' [Citation.] Therefore, plaintiff's contention that the trial court erred by granting defendants' motion for summary judgment is deemed waived." (Id. at pp. 1115-1116.)
Similarly, here, Cayton has not carried his appellate burden of demonstrating error by citing to evidence in the record creating a triable issue of material fact. We therefore affirm the judgment.
DISPOSITION
The judgment is affirmed. Stockton Unified School District is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
HOCH, J. We concur: /s/_________
DUARTE, Acting P. J. /s/_________
RENNER, J.