Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCVSS132248. Christopher J. Warner, Judge.
Law Offices of Marc E. Grossman and Marc E. Grossman for Plaintiff and Appellant.
Backus, Bland, Navarro & Weber, Charles N. Bland and Rebecca L. Gerome for Defendant and Respondent.
OPINION
MILLER J.
Donnell Ford (Ford) sued Wells Fargo Home Mortgage (Wells Fargo) alleging (1) wrongful termination based on race, gender, and retaliation, and (2) breach of an implied employment contract. The trial court granted Wells Fargo’s motion for summary judgment. Ford filed a motion requesting the court reconsider its ruling on the summary judgment motion. The trial court denied Ford’s motion for reconsideration. Ford contends the trial court erred by denying his motion for reconsideration because he presented the court with new facts. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
We begin by presenting the facts that were available when the court ruled on Wells Fargo’s motion for summary judgment.
Ford and Jose Villa (Villa) worked together at AAMES Home Loan (AAMES). At AAMES, Ford’s job primarily consisted of answering telephones and responding to customers’ requests for loans. In December 2002, Villa left AAMES and began working at Wells Fargo. Wells Fargo hired Villa to start and supervise Wells Fargo’s San Bernardino County subprime home mortgage sales. Villa recruited Ford to work at Wells Fargo as a subprime “Home Mortgage Consultant” (HMC), selling subprime loans. Villa supervised Ford and several other HMCs. The HMC position differed significantly from Ford’s job at AAMES. At AAMES, the company referred potential customers to the sales staff, whereas at Wells Fargo the HMCs were expected to generate their own customers. The HMC position “required a substantial and continuous presence in the general community, and aggressive and consistent marketing to non-Wells Fargo bank-related sources such as real estate agents and brokers, home builders, community and business groups and the general public.”
In Wells Fargo’s letter to Ford offering employment, Wells Fargo noted that if Ford accepted the offer of employment, then Ford’s employment would be on an at-will basis. In Ford’s employment agreement with Wells Fargo, he agreed that his employment “shall be at all times at-will employment.” Also in the agreement, Wells Fargo reserved the right to terminate Ford’s employment for any reason. Additionally, Ford signed an acknowledgement that, as an HMC, he was required “to close a minimum of two loans per month.” Ford further acknowledged that if he did not meet the minimum production threshold, then he would be subject to termination.
Four months after starting at Wells Fargo, Villa was supervising eight HMCs, all of whom he had hired. The HMCs consisted of four African-American people, Ford, Kyle, Rita, and Dawn; two Hispanic people, Maria and Carlos; one Philippino person, Shaun; and one Middle Eastern person, Samira. Villa also supervised Lidia, who was Hispanic, and who transferred to San Bernardino from another region.
In April 2003, Villa officially opened the San Bernardino County office and began assigning the HMCs to specific Wells Fargo bank locations. In making the bank assignments, Villa took into account bank managers’ requests for Spanish-speaking HMCs; however, he did not consider race or gender when making the assignments. Villa assigned Ford to work at a kiosk inside a grocery store. Ford wanted to be assigned to a traditional Wells Fargo bank branch in San Bernardino. Ford did not want to be assigned to the grocery store kiosk because he believed people would not submit loan applications in a grocery store. Kyle and Rita, who were African-American, were also assigned to kiosks rather than traditional bank branches; however, Dawn, who was African-American, was assigned to a traditional bank branch. Villa believed that an HMC’s bank assignment would have only a minor impact on an HMC’s success, because the job involved marketing subprime loans to a broad customer base.
In April 2003, when the office officially opened, Wells Fargo began tracking the HMCs’ production. Wells Fargo used a computer program to generate semiannual reports, in January and July, to determine if the HMCs were meeting their minimum production requirements. The computer program filtered data according to two criteria: (1) whether an HMC had been employed for more than one year, and (2) whether an HMC had produced less than 24 funded loans during the previous 12 months. The computer program did not take race or gender into account. Any HMC on the list was presumed to be subject to termination, unless senior management requested an exception for a particular HMC. Permissible bases for exceptions were generally limited to situations where an HMC had been engaged in sales for significantly less than the 12-month time period. For example: (1) an HMC who was on a leave of absence; (2) an HMC with a corporate hire date prior to the 12-month review period, but who transferred into the HMC position during the 12-month period; or (3) an HMC who generated a large dollar volume of loans, typically exceeding $12,000,000.
During a nine-month period from April 2003 to December 2003, Ford produced 14 funded loans, but the requirement was 18 funded loans. Ford felt he would have been able to meet his production goals if he were assigned to a traditional bank branch. During 2004, Villa met with Ford on a monthly basis to discuss ways in which Ford might increase his production to meet the minimum requirements. During the conversations, Ford was informed that his employment could be terminated if he did not meet his quota. Villa wanted all of his HMCs to be successful, because his compensation was based on the sales activity of the HMCs he supervised.
Villa approved payments for Ford’s advertisement in the newspaper and for Ford’s fliers. Wells Fargo paid for Ford to join civic and community organizations, such as the chamber of commerce. Wells Fargo also paid for marketing events at the grocery store kiosk. Villa authorized Ford to conduct seminars on how to purchase a home at San Bernardino Adult High School and various church events. Villa attended one of Ford’s seminars so that he could assist Ford by translating the information into Spanish. Additionally, Wells Fargo provided Ford with monthly training sessions.
In June 2004, Ford was assigned to a traditional bank branch in Beaumont. Ford was angry that he was not assigned to the San Bernardino branch, and that two people with less seniority were assigned to the San Bernardino branch. Villa assigned one woman, Cathy, to the San Bernardino branch because the branch manager specifically requested Cathy due to a prior positive experience with her. A second person, who spoke Spanish, was also assigned to the San Bernardino branch because the branch needed HMCs who spoke Spanish. Ford felt he had been discriminated against because only females were assigned to the “better branches,” such as the San Bernardino branch.
In the questioning and testimony, Ford and Wells Fargo’s attorney referred to the year as 2003; however, the record reflects that Ford was assigned to the Beaumont branch just prior to his termination, which occurred in 2004. Accordingly, we infer the year was 2004.
On July 27, 2004, Villa and Ford met for Ford’s monthly review. Villa acknowledged that Ford’s performance had improved since being assigned to the Beaumont branch. Villa gave Ford six months to meet the sales quota. Ford told Villa he did not think it was fair that he was given a deadline, since he had been assigned to a kiosk while others had been assigned to traditional bank branches. Ford told Villa that he would contact a lawyer about the fairness of the deadline.
Ford was included on the July 2004 computer generated list of HMCs who were not meeting their minimum production requirements. Five hundred twenty-seven HMCs, including Ford, were included on the nationwide list. From January 2004 to July 2004, Ford produced 10 funded loans, but the requirement was 14 funded loans. On August 3, 2004, Villa informed Ford that his employment was terminated due to Ford’s lack of production. There was nothing Villa did that suggested to Ford that Villa was prejudiced against African-American people or people who did not speak Spanish.
On November 23, 2005, Ford filed a lawsuit against Wells Fargo. Ford alleged: (1) wrongful termination based on race; (2) wrongful termination based on gender; (3) wrongful termination based on retaliation; and (4) breach of an implied employment contract. Ford alleged that Wells Fargo discriminated against him, as an African-American male, by assigning him to a less desirable grocery store kiosk, while Hispanic people and women were assigned to more lucrative bank branches. Ford asserted that it was “highly improbable” that an HMC assigned to a grocery store kiosk could meet Wells Fargo’s sales goals. Ford alleged that “Villa manifested a clear preference and policy to give the best locations to Hispanic females and the worst locations to Afro-American males.” Ford asserted that Villa falsely represented that the San Bernardino branch needed Spanish-speaking HMCs, because non-Spanish speakers were assigned to the branch.
Wells Fargo filed a motion for summary judgment. First, Wells Fargo argued Ford’s claims of wrongful termination based on race and sex failed because undisputed facts showed Ford was fired as the result of “a computerized, impersonal and quantitative analysis of his sales performance, which showed that he had not met the minimum required production levels.” Second, Wells Fargo asserted that Ford’s claim of wrongful termination based on retaliation failed, because “undisputed facts negate a plausible connection between any protected activity and [Ford’s] termination.” Third, Wells Fargo contended Ford’s allegation of breach of an implied contract was unsuccessful because undisputed facts demonstrated that Ford’s employment was at-will.
As to the claims of wrongful termination based on race and sex, the trial court found Ford failed to demonstrate that he had a satisfactory job performance, which is an essential element of the claims. The court also found that the evidence did not support findings that (1) Ford was assigned to the kiosk based on his race or gender, because a female was assigned to a kiosk and an African-American was assigned to a traditional bank branch, and (2) there was no indication that people assigned to kiosks could not meet the monthly quota.
In regard to Ford’s claim that he was wrongfully terminated on the basis of retaliation for his statement that he planned to sue Wells Fargo for discrimination, the trial court found that it was undisputed that Villa did not tell anyone about Ford’s statement. The trial court also found that Wells Fargo’s policy required that Villa terminate Ford due to Ford’s lack of production. The trial court found that no facts supported Ford’s claim of retaliation.
As to Ford’s claim of breach of an implied employment contract, the trial court found that there was not an implied contract because undisputed facts proved that Ford and Wells Fargo had an express contract for at-will employment. The trial court reasoned that an express contract cannot be overcome by an implied contrary understanding. The trial court granted Wells Fargo’s motion for summary judgment.
Ford filed a motion for reconsideration. Ford alleged that a new declaration from Villa provided new facts and evidence that were not before the court when it ruled on the motion for summary judgment. In his new declaration, Villa wrote that he had met with Ford and Ford’s attorney after the trial court granted Wells Fargo’s motion for summary judgment. At the meeting, Villa was shown (1) the declaration he submitted in support of the summary judgment motion, and (2) the trial court’s written ruling in the summary judgment motion. In his new, post-summary judgment declaration, Villa declared that his statements to Wells Fargo’s attorneys, in the pre-summary judgment declaration, were taken out of context, reworded, and used by the court to make false findings. In the post-summary judgment declaration, Villa declared that he took race and sex into account when assigning HMCs to different locations, because a supervisor instructed him to consider the branch managers’ preferences. For example, if a bank manager requested a woman, then Villa would assign a woman; if a bank manager wanted someone who was bilingual then he would assign a Hispanic person. Villa believed that Ford was disadvantaged as an African-American male, because an African-American male was not assigned to a prime branch location during Ford’s employment. Additionally, Villa declared that he told his supervisor about Ford’s plan to sue Wells Fargo for discrimination. Villa felt that after he told his supervisors about Ford’s plan to sue, “they desired to get rid of [Ford] as quickly as possible.”
Rebecca, an attorney working for Wells Fargo, declared that she went over the pre-summary judgment motion declaration with Villa line-by-line. Rebecca made changes to the declaration based on Villa’s requests. Rebecca forwarded the edited declaration to Villa, which he approved. Wells Fargo submitted e-mails between Rebecca and Villa, which supported Rebecca’s declaration.
At the hearing on the motion for reconsideration, Ford argued that Villa was unreliable due to contradicting himself in the declarations. Ford contended that, to the extent the court relied on Villa’s initial declaration in granting the motion for summary judgment, the court should reconsider that decision, because Villa was not credible.
The trial court denied the motion for reconsideration because (1) Ford had the opportunity to discover the “new” evidence when Villa was deposed prior to the ruling on the summary judgment motion, and (2) Wells Fargo presented a substantial case for summary judgment by showing a reasonable basis for terminating Ford’s employment.
DISCUSSION
Ford argues the trial court erred by denying his motion for reconsideration because Ford presented new facts. We disagree.
A motion for reconsideration may only be brought if the party moving for reconsideration can offer “new or different facts, circumstances, or law” which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Code Civ. Proc., § 1008, subd. (a); Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1467.) Where evidence addressed in the motion for reconsideration was available to a party before the initial motion was heard, such evidence is not considered “new” evidence for purposes of a motion for reconsideration. (See Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028.) In other words, the party seeking reconsideration must provide not only new evidence, but also a satisfactory explanation for failing to present that evidence earlier. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342 (Mink).)
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
“‘An order denying a motion for reconsideration is interpreted as a determination that the application does not meet the [minimum] requirements of section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling.’ [Citation.]” (Mink, supra, 2 Cal.App.4th at p. 1342.) “A trial court’s ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. [Citation.]” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
In his post-summary judgment declaration, Villa wrote that he had not read his pre-summary judgment declaration until after the trial court ruled on the summary judgment motion, and therefore, he did not know that it contained errors until after the court ruled on the motion. Ford’s attorney deposed Villa on December 13, 2007. Villa’s pre-summary judgment declaration was filed on December 24, 2007. Ford’s attorney deposed Villa a second time on February 18, 2008. At the second deposition, Ford’s attorney handed Villa a copy of his pre-summary judgment declaration, and questioned Villa about the declaration. The trial court ruled on Wells Fargo’s motion for summary judgment on March 10, 2008.
Ford has failed to provide a satisfactory explanation for failing to present the “new” evidence sooner because, with reasonable diligence at the second deposition, Ford could have discovered the alleged errors in Villa’s pre-summary judgment declaration. Therefore, we conclude the trial court did not abuse its discretion in denying Ford’s motion for reconsideration, because the evidence was not “new.”
Ford contends that he had no way of knowing that Villa would change his testimony, and therefore he could not have provided Villa’s changed statements prior to the ruling on the motion for summary judgment. Ford’s argument is unpersuasive because, in his post-summary judgment declaration, Villa writes that he had not read his complete declaration prior to the summary judgment ruling, and if he had read it, then he would have known the declaration contained errors. Consequently, if Ford had exercised reasonable diligence by more thoroughly questioning Villa about his pre-summary judgment declaration at the second deposition, then Villa would have realized that the declaration contained errors.
Additionally, Ford essentially argues that the motion for reconsideration should have been granted because Villa recanted his earlier statements, which resulted in Wells Fargo not having support for its summary judgment motion. Ford’s argument is directed at the merits of the motion for reconsideration, i.e., why the summary judgment motion should have been denied. However, Ford’s motion for reconsideration fails before it reaches that point, because he did not meet the requirements of section 1008, as noted ante. In sum, the trial court did not abuse its discretion by denying the motion for reconsideration, because Ford did not meet the requirements of section 1008.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur:GAUT Acting P. J. KING J.