Opinion
G063877
09-25-2024
KELLY DAVIDS, Plaintiff and Appellant, v. SHAWN JUDSON et al., Defendants and Respondents
Mahoney & Soll, Paul M. Mahoney and Ryan P. Mahoney for Plaintiff and Appellant. Walsh & Associates, George E. Ordonez and Dennis J. Walsh for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. CIVDS2011141, Michael A. Sachs, Judge.
Mahoney & Soll, Paul M. Mahoney and Ryan P. Mahoney for Plaintiff and Appellant.
Walsh & Associates, George E. Ordonez and Dennis J. Walsh for Defendants and Respondents.
OPINION
O'LEARY, P. J.
Kelly Davids sued her employer, the Etiwanda School District (the District), and superintendent Shawn Judson (collectively, respondents). She asserted, among other things, that they discriminated against her by repeatedly declining to promote her. When respondents moved for summary judgment, Davids filed a wholly deficient opposition, failing to cite to any evidence in her memorandum of points and authorities and failing to cite specific evidence in her separate statement in opposition. The trial court granted respondents' motion.
On appeal, Davids uses essentially the same memorandum of points and authorities she filed below as both her opening brief and her reply brief. She again fails to cite to the record. Because her briefs are fatally deficient, we disregard her contentions, which are meritless in any event. Accordingly, we affirm the judgment.
FACTS
I. DAVIDS'S ACTION
Davids, a 55-year-old woman with a medical condition, was an assistant principal at one of the District's schools and a longtime employee of the District. In 2020, Davids filed this lawsuit against respondents. In her operative complaint, she asserted claims for: age, sex, and disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); failure to prevent discrimination under FEHA; and intentional and negligent infliction of emotional distress. She alleged she had been passed over for promotion to principal numerous times, with less qualified people hired instead. Among other things, she asserted that in 2004, Judson saw her perform standup comedy at a local comedy club and later told her that "if she wanted to do comedy[,] that would be a consideration when making the decision for selecting a principal."
II. RESPONDENTS' MOTION FOR SUMMARY JUDGMENT
Following discovery, respondents moved for summary judgment. As to the discrimination-related claims, they argued, inter alia: (1) as an individual, Judson was not subject to FEHA claims; (2) Davids could not make a prima facie case of discrimination; (3) the District has made a sufficient showing of legitimate, nondiscriminatory reasons for its personnel decisions; and (4) Davids could not show the District's stated reasons were pretextual. As for the emotional distress claims, respondents contended, inter alia: (1) the District was immune against these common law claims; and (2) the claims failed on the merits.
In support of their motion, respondents submitted numerous declarations, excerpts of deposition transcripts, and other exhibits. Among other things, respondents provided evidence that the District's job application process was structured and merit-based and that the applicants promoted over Davids had greater skill or experience in relevant areas, performed better in the job interviews, or were more familiar with the relevant schools. According to respondents' evidence, several of the successful applicants were women in their mid-40s or early 50s. As of November 2021, 10 of the 17 principals at the District were women. And Davids had also applied for multiple positions at other school districts but was similarly unsuccessful. Respondents also filed a separate statement of undisputed facts.
Davids filed an opposition. She attached her own declaration and several other exhibits, spanning a total of 172 pages. Yet her memorandum of points and authorities included no citations to evidence in support of her factual assertions. She claimed, inter alia, that the District had previously favored men, claiming that in the past, its principal group "did not reflect the student ratio of male and female students."
In her separate statement in opposition to respondents' motion, she admitted: (1) she believed the main reasons she was not promoted to principal were that she was a woman and that she continued to participate in comedy; (2) other reasons have "crossed her mind," but she did not know if they contributed to the decisions not to promote her, and whether her medical condition played a role was "speculation"; and (3) her medical condition imposed no restrictions that adversely affected her daily life activities. For those assertions that she disputed, she provided no specific evidentiary reference in support and instead cited all 172 pages of her evidence, repeatedly stating only "Deny. ('Davids Decl. Exhibits A-K')."
III. THE TRIAL COURT'S RULING
Following a hearing, the trial court granted summary judgment for respondents. The court noted Davids's failure to cite specific evidence in her separate statement in opposition, explaining that this omission was a sufficient ground for granting the motion. It concluded Judson could not be liable for discrimination under FEHA because he was not the employer.
As for the discrimination claims against the District, the trial court concluded, inter alia: (1) the District provided sufficient evidence that its decisions not to promote Davids were merit based, rather than discriminatory; and (2) Davids provided no evidence that the District's reasons were pretextual or that otherwise supported a finding of intentional discrimination. The court noted that although Davids claimed she had been better qualified than the applicants promoted over her, she provided no specific evidence suggesting this was true. And although Davids claimed the hiring process had previously favored men, she failed to show that men were overrepresented compared to the applicant pool or the working-age public. Turning to Davids's emotional distress claims, the court stated, inter alia, that personnel decisions do not constitute sufficiently "'outrageous conduct'" and thus could not support such claims. Davids appealed.
DISCUSSION
Davids's appellate briefing is hopelessly defective, rendering her appeal a nonstarter. On appeal, she is represented by two of the same attorneys who represented her below. With minimal changes, the opening brief these attorneys filed on her behalf is nearly identical to the memorandum of points and authorities they filed on her behalf below. Like the memorandum of points and authorities, the opening brief includes no citations to the record in support of factual assertions. The opening brief is therefore in violation of California Rules of Court, rule 8.204(a)(1)(C), which instructs that every reference to a matter in the record must be supported by a citation to the precise place in the record where the matter appears.
In their respondents' brief, respondents point out this deficiency and ask that we deem Davids's arguments forfeited for that reason. Undeterred, Davids's attorneys filed essentially the same document as a reply brief, still including no citations to the record, with one exception: they state in the introduction that "Appellate [sic] previously stated the facts in the brief which are quite detailed can be found in the declaration of . . . David's [sic] at Appendix page 290."
Davids's declaration spans 15 pages, with no headings, and does not begin on page 290 of her appellant's appendix.
Because of Davids's inadequate briefing, we disregard all factual assertions in her briefs. (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846.) This dooms Davids's attempt to show that the trial court erred in granting summary judgment against her. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230 ["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"].)
Moreover, were we to address Davids's claims on the merits, we would find no error in the trial court's ruling. Initially, as the court noted, Davids's failure to cite specific evidence in disputing respondents' claims of undisputed facts was sufficient to justify summary judgment: "Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts. [Citation.] When a fact upon which plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court; the court does not have the burden to conduct a search for facts that counsel failed to bring out. [Citation.]" (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
In addition, the trial court's analysis of Davids's discrimination claims was sound. Because Judson was not Davids's employer, he could not be held personally liable for discrimination under FEHA. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1160.)
We review the trial court's ruling on summary judgment de novo. (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 636637.)
As for claims against the District, even assuming Davids had made a prima facie showing of discrimination, the District sufficiently rebutted it-providing evidence that its decisions to promote others over Davids were based on qualifications, experience, and other merit-based considerations. Davids provided no evidence that these reasons were pretextual; nor has she produced other evidence of intentional discrimination. She provided no evidence that the successful applicants were less qualified. She provided no evidence that the District disfavored women-a majority of the District principals were women, and although Davids claims the District had previously favored men, she provided no evidence that men were overrepresented compared to the applicant pool or the working-age public. Davids admitted she did not know whether her lack of promotion was based on age or disability and that it was "speculation" to say that her medical condition was considered.
In analyzing claims of employment discrimination under FEHA, California courts use the three-stage burden-shifting approach established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.) Under this framework: (1) the plaintiff must establish a prima facie case of discrimination; (2) the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision; and (3) if the employer meets this burden, the plaintiff must then show that the stated reason was merely a pretext for discrimination or provide other evidence of intentional discrimination. (Ibid.)
Turning to Davids's emotional distress claims, she cannot assert those common law claims against the District. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [Gov. Code, § 815 bars common law claims for infliction of emotional distress against public entity].) Moreover, her claim of intentional infliction of emotion distress fails because she cannot establish the necessary "outrageous conduct" based on personnel decisions. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [even if motivated by improper factors, managing personnel is not outrageous conduct beyond bounds of human decency, as necessary to establish intentional infliction of emotion distress].) And Davids provides no reasoned argument as to her claim of negligence. Instead, she conclusorily asserts that respondents owed her a duty of care and that they breached their duty of care. Her failure to develop her argument on this issue constitutes additional forfeiture. (Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521 [contentions unsupported by reasoned argument and citation to authority are forfeited].) Accordingly, Davids establishes no error in the trial court's ruling.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: GOETHALS, J., SANCHEZ, J.