Opinion
E065940
06-13-2018
MASSOUD KAABINEJADIAN, Plaintiff and Appellant, v. RABOBANK, N.A., Defendant and Respondent.
Massoud Kaabinejadian, Plaintiff and Appellant in pro. per. weintraub tobin chediak coleman grodin, Charles L. Post, and Brendan J. Begley for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVRS1110343) OPINION APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Affirmed in part and reversed in part. Massoud Kaabinejadian, Plaintiff and Appellant in pro. per. weintraub tobin chediak coleman grodin, Charles L. Post, and Brendan J. Begley for Defendant and Respondent.
Rabobank, N.A. (Rabobank) terminated Massoud Kaabinejadian from his job as Credit Administrator. Rabobank claims that it did so due to conflicts between Kaabinejadian and his coworkers and due to his lack of the necessary skills. In this action, Kaabinejadian alleges that Rabobank terminated him based on discrimination against his Iranian national origin and in retaliation for his threat to claim discrimination.
Rabobank moved for summary judgment. It introduced ample evidence of conflicts between Kaabinejadian and his coworkers.
The trial court granted the motion; it ruled that Kaabinejadian failed to show that Rabobank's stated reasons for the termination were pretextual. We must reverse. While the evidence that Kaabinejadian was terminated for legitimate, nondiscriminatory reasons is strong — even, to our minds, convincing — there was also substantial evidence from which a reasonable juror could find that those reasons were pretextual and that Rabobank actually terminated Kaabinejadian based on discrimination and retaliation. That was sufficient to require the trial court to deny the motion for summary judgment.
Kaabinejadian also raises several issues regarding amendment of the pleadings and discovery, which we reject.
I
FACTUAL BACKGROUND
The following facts are taken from the evidence submitted in support of and in opposition to the motion for summary judgment. We disregard any evidence to which the trial court sustained an objection. (Code Civ. Proc., § 437c, subd. (c).)
Consistent with the applicable standard of review (see part III, post), when there is a conflict in the evidence, we set forth only the version that is favorable to Kaabinejadian.
Kaabinejadian was born in Iran, to Iranian parents; he became a naturalized United States citizen. On January 9, 2006, he started working for Rabobank. His position was Credit Administrator for the Small and Medium Enterprise (SME) Division, in Ontario.
All further dates are 2006.
The decision to hire Kaabinejadian was made by Bob Mapes, who was Senior Credit Officer in the Credit Administration Department, in El Centro. At the time, Mapes knew that Kaabinejadian was Middle Eastern, but not specifically that he was Iranian.
Dave Takata was the head of the SME Division. Kaabinejadian's immediate supervisor, however, was Mapes.
Some of the personnel in the SME division were "relationship managers" who were responsible for generating loan business from new and existing customers. Kaabinejadian, as Credit Administrator, was responsible for approving proposed loans generated by the relationship managers. While there was a "'healthy tension'" between credit administrators and relationship managers, they were supposed to work in "partnership" for the benefit of Rabobank as a whole.
In January and February, Kaabinejadian apparently did not have any problems.
On March 3, with the approval of Mapes and Takata, Kaabinejadian set up an "appeal process." Its purpose was "to streamline and speed up the process by reducing the number of people necessary to review" a proposed loan. If Kaabinejadian disapproved a proposed loan, the relationship manager could give him additional supporting information; if he still disapproved, then the proposed loan, along with his comments, could be submitted to Mapes for approval.
Rabobank states that it set up the appeals process after Nichols' March 14 memo (see post) and that the appeal process allowed relationship managers to appeal directly to Mapes, without going through Kaabinejadian. It also implies that the appeal process was not Kaabinejadian's idea. None of this is correct.
Michael Olague headed one team of relationship managers in the SME Division. Kaabinejadian got along well with Olague and his team.
Patric Nichols headed a second team of relationship managers in the SME division, including Bob Brown, Gregorio Velasquez, and Cary Wanner. Cheryl Walker was Rabobank's Human Resources Director.
On March 14, Nichols sent Walker a memo complaining that Kaabinejadian was "having an impact on this unit's effectiveness . . . ." He claimed that (1) Kaabinejadian's "lack of understanding" had caused the bank to lose a significant customer; (2) Kaabinejadian had rejected a promising prospective employee after a single interview; (3) Kaabinejadian's "lack of market knowledge" had jeopardized "[a] lengthy and expensive solicitation for the relationship with a prime prospect"; and (4) Kaabinejadian had caused the bank to lose an opportunity to make a loan to "[a]n existing customer and significant depositor."
Walker investigated Nichols' complaints by speaking to Mapes, Takata, and Nichols. Mapes and Takata considered it to be a "conflict between their employees," which they would "work through." No one told Kaabinejadian about the memo.
Rabobank states that Walker discussed Nichols' memo with Kaabinejadian. But there is no evidence of that, and there is substantial evidence to the contrary.
From March 20 through April 3, Kaabinejadian took a trip to Iran. He told Nichols and others about it before going.
On April 26, Velasquez emailed Takata and Nichols, complaining about an email from Kaabinejadian, which he described as "unprofessional" and "condescending." Later, he spoke to Walker about it; she met with him to discuss it.
Kaabinejadian's email had said: "It is imperative for you to please understand that I did allow you that option as an accommodation to support your deal, otherwise, I did not have to do that and the deal was declined. Period. Thanks."
On May 8, Kaabinejadian emailed Takata, Nichols, and Walker, complaining about Velasquez. Specifically, he said that Velasquez was having another employee do his work and was going over Kaabinejadian's head in violation of the appeal process. He did not receive a response.
After May 8, Walker started keeping a "Log of Events" relating to Kaabinejadian, "[t]o document the escalation of incidents involving [him] and his co-workers." It was based on her handwritten notes; after using them to update the log, she shredded them.
On May 17, Nichols complained to Walker about Kaabinejadian again. He said that Kaabinejadian was "personally abusive, disrespectful and unprofessional." He added that Kaabinejadian was "putting the Bank at risk to lose clients because credit is not providing good customer service."
On May 19, Velasquez complained to Walker that Kaabinejadian "makes everything difficult" and got upset when relationship managers went over his head to Mapes.
On May 22, Kaabinejadian emailed Velasquez (with copies to Takata and Nichols) accusing him of being "very unprofessional, disrespectful, and, at times, hostile in your approach and dealings with me." Velasquez contacted Takata, who advised him not to respond.
On May 23, Walker and Mapes met with Kaabinejadian. During that meeting, Walker cautioned him about "the importance of respectful communication" and added that "emails that are harsh in tone . . . are not appropriate."
In response, Kaabinejadian complained of "harass[ment]" and "discriminat[ion]" by Nichols and his team. He did not specifically claim that the harassment and discrimination were based on his national origin. Walker promised to investigate his complaint. However, she never actually did so.
The next day, May 24, Kaabinejadian emailed Mapes and Walker saying, "Thank you very much for our meeting yesterday, as I found it very beneficial and I appreciate the feedback from both of you." That same day, however, Kaabinejadian also emailed Walker complaining that Nichols had bypassed the appeal process by seeking approval directly from Mapes.
On May 31, Nichols complained to Walker, at some length, about Kaabinejadian. He said he felt he could not have a good working relationship with Kaabinejadian, because they had a "personality clash" and because Kaabinejadian lacked the necessary credit skills. He reported that other members of his team were also having "issues" with Kaabinejadian.
Mapes, Takata, and Walker came up with a "work-around solution," which they called the "reallocation plan." Under the reallocation plan, Nichols, Brown, and Wanner were reassigned from Kaabinejadian to a different credit administrator.
On June 2, Walker officially announced the reallocation plan. Kaabinejadian said he was "fine with this solution." Although Velasquez still had to work with Kaabinejadian, he told Takata and Walker that he was "excited about" with the reallocation plan. Later, however, he decided that he had been "overly optimistic," because "the problems persisted."
On or about June 12, Kaabinejadian phoned Walker. He "attempted to discuss . . . [his] continued complaints of harassment and discrimination by co-workers." Walker said she was not going to investigate because Nichols and Brown were leaving.
Kaabinejadian then said that he "was going to file complaints with [Rabobank's] upper management and [with] appropriate governmental agencies for harassment and discrimination"; moreover, he was going to "tak[e] legal action" against Walker and Rabobank.
Walker said, in an "angry" and "hostile" tone, "[W]hy don't you hold up a mirror and look at yourself." (Capitalization altered.) She added, "Do your job" and hung up. (Capitalization altered.) According to Walker, she meant that Kaabinejadian needed to take some responsibility for the "tension" and "dysfunction" in the office instead of blaming them exclusively on others. Kaabinejadian, however, understood her as expressing discriminatory animus against him based on his Iranian ancestry.
On June 12, Nichols resigned. His written resignation did not mention Kaabinejadian. Rather, it explained that he was resigning because the position for which he had been hired had been eliminated and he had been given different duties. In a conversation with Takata, he bragged that he was resigning because his new employer "backed a dump truck full of money up to [his] door . . . ."
Takata told Walker, however, that Nichols had been "stressed and continuing to have difficulty with [Kaabinejadian]."
On June 22, Brown also resigned. His written resignation likewise did not mention Kaabinejadian. He said that he was resigning because of "all of the setbacks we have experienced" and because of "[Nichols]'s departure . . . ."
That same day, Takata told Walker that he believed that both Nichols's and Brown's resignations had been "heavily influenced" by their "inability to work with" Kaabinejadian. He added: "I have 2 other RMs (Justin Rodgers & Greg Velasquez) who are having problems communicating with [Kaabinejadian]. Cary Wanner has also expressed his fear of having to work with [Kaabinejadian]. Finally, I received some disturbing news from . . . an independent contractor . . . , about [Kaabinejadian]." At his deposition, Takata did not remember what the "disturbing news" was.
On June 22 or 23, Kaabinejadian and Mapes discussed the departure of Nichols and Brown. Kaabinejadian asked, "Mr. Mapes, do I have your vote of confidence?" Mapes said, "Yes."
On June 26, Takata emailed Mapes, saying: "[P]lease consider the following: Both [Nichols] and [Brown] indicated to me that [Kaabinejadian] was one of their primary reasons for leaving. [Wanner] is already disturbed about [Nichols] and [Brown]'s departures, and has voiced his concern about having to work with [Kaabinejadian]. I'm struggling to keep my last RM in Ontario on board.
"I also hope that [Velasquez] will be able to maintain his patience and now Justin in Fresno is completely frustrated with [Kaabinejadian]. How long will it take for [a certain newly hired relationship manager] to feel the same way?
"Finally, it'll be extremely uncomfortable for me to recruit replacements when I know the problem persists. I'd almost have to disclose this issue during the interviewing process so that candidates won't join us then walk right back out the door again. That's essentially what happened to [Nichols] and [Brown]. As far as I'm concerned, [Kaabinejadian] is now a big[] problem . . . .
"Yes, I'm frustrated. But I'm also hopeful we can come up with a workable solution before the SME Division crumbles even further."
On June 28, Mapes, Takata, and Walker held a conference call regarding Kaabinejadian. They "[d]iscussed the resignations of . . . Brown and . . . Nichols and their issues with [Kaabinejadian]." Takata reiterated that he was afraid he would lose more relationship managers if Kaabinejadian stayed at Rabobank. He added that Kaabinejadian "was very difficult to work with and the tone/content of his emails was not respectful. His behavior continues to be inappropriate. [He] was not trying to establish a good working relationship with the RMs." After some further discussion, Walker "asked . . . Mapes if he thought the Bank should continue to keep [Kaabinejadian] as an employee and he said 'no.'"
On July 5, Mapes and Walker met with Kaabinejadian and terminated him. They told him that the termination was due to "the inability to find a resolution to conflicts between him and other persons in the SME division and his lack of requisite credit skills . . . ." He was replaced by a non-Iranian white male.
II
PROCEDURAL BACKGROUND
In 2011, Kaabinejadian filed this action against Rabobank. Initially, he also named Walker as a defendant, but she was later dismissed without prejudice. The operative (first amended) complaint asserted three causes of action: (1) employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12900-12996), (2) wrongful termination in violation of public policy, and (3) breach of contract.
In August 2015, Rabobank filed a motion for summary judgment, on grounds including that Kaabinejadian could not make out a prima facie case of employment discrimination and that Rabobank had legitimate, nonpretextual reasons for the termination.
In January 2016, the trial court granted summary judgment. With respect to the employment discrimination and wrongful termination causes of action, it ruled that Rabobank had shown that it had legitimate and nondiscriminatory reasons for the termination, and Kaabinejadian had not introduced any evidence that these were pretextual.
In April 2016, the trial court entered a judgment of dismissal.
III
KAABINEJADIAN RAISED A TRIABLE ISSUE OF FACT
REGARDING PRETEXT
Kaabinejadian contends that the trial court erred by granting summary judgment on his causes of action for employment discrimination and termination in violation of public policy.
Kaabinejadian's cause of action for breach of contract alleged that Rabobank had breached express promises in its employee handbook as well as the implied covenant of good faith and fair dealing. Rabobank moved for summary judgment on this cause of action on the ground that his employment was at-will. He does not argue that the trial court erred by granting summary judgment on this cause of action. We deem any such argument forfeited.
A. The Standard of Review.
"A trial court may only grant a motion for summary judgment if no triable issues of material fact appear and the moving party is entitled to judgment as a matter of law. [Citations.]" (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
"[I]n moving for summary judgment, a 'defendant . . . has met' his 'burden . . . if' he 'has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that 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. . . .' [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
"In ruling on the motion, the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
FEHA prohibits discrimination in employment, including discrimination based on national origin (Gov. Code, § 12940, subd. (a)). It also prohibits retaliation — i.e., discrimination based on opposition to any practice that is forbidden under FEHA. (Gov. Code, § 12940, subd. (h).)
Generally, a prima facie case of employment discrimination requires "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.]" (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) A prima facie case of retaliation is essentially identical, except that in lieu of a showing that the plaintiff is a member of a protected class, there must be a showing that the plaintiff engaged in a protected activity. (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
On a motion for summary judgment, the employer "ha[s] the initial burden to either (1) negate an essential element of [the employee]'s prima facie case [citation] or (2) establish a legitimate, nondiscriminatory reason for terminating [the employee] [citation]." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.)
If the employer meets its initial burden, then "'[the] employee . . . must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence [that] 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.' [Citation.]" (Wills v. Superior Court, supra, 195 Cal.App.4th at p. 160.)
"Because '[p]roof of discriminatory intent often depends on inferences rather than direct evidence[,] . . . "very little evidence of such intent is necessary to defeat summary judgment."' [Citation.]" (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 935.) "'[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper, . . . [and] rarely appropriate for disposition on summary judgment, however liberalized it be.' [Citation.]" (Id. at p. 925.)
"In determining whether a summary judgment motion was properly granted, 'we review the trial court's decision de novo . . . ."' [Citation.]" (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 641.)
B. Discussion.
Rabobank does not dispute that Kaabinejadian could make out a prima facie case. It introduced evidence, however, to support the stated reason for the termination, namely Kaabinejadian's "inability to find a resolution to conflicts between him and other persons in the SME division and his lack of requisite credit skills . . . ." The issue, then, is whether Kaabinejadian introduced substantial evidence of discriminatory animus and/or substantial evidence that this stated reason was pretextual.
We conclude that he did, in five respects.
First, Kaabinejadian introduced Walker's comment, "Why don't you hold up a mirror to yourself and look at yourself." Significantly, she made this comment in response to his assertion that his coworkers were harassing him and discriminating against him. In this context, it is reasonably susceptible of the meaning that he had to expect such mistreatment due to his Iranian national origin.
The trial court reasoned that "[t]he statement by Walker (i.e. 'look in the mirror') in the context of the overall conditions that prevailed at the time could equally reference a plea for self-reflection having nothing to do with . . . national origin." We agree completely. However, in ruling on a motion for summary judgment, the trial court is required to view the evidence in the light most favorable to the opposing party. Thus, "'the task of disambiguating ambiguous utterances is for trial, not for summary judgment.' [Citation.]" (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541.)
At oral argument, counsel for Rabobank pointed to Code of Civil Procedure section 437c, subdivision (e). This statute provides that "summary judgment may be denied in the discretion of the court . . . if a material fact is an individual's state of mind . . . and that fact is sought to be established solely by the individual's affirmation thereof." Counsel argued that the trial court evidently decided, in its discretion, not to deny the motion, even though Walker's declaration was the only evidence of her state of mind, and somehow this means that her declaration conclusively established her state of mind. However, there was other evidence of Walker's state of mind — namely, the words she used. These are susceptible of a meaning that would contradict her declaration.
We also note that Walker's event log does not reflect her "mirror" remark, even though she admits that she did say "[s]omething to that effect . . . ." If she intended it as helpful advice, one would have expected her to memorialize it in her event log. From the fact that she did not, one can infer discriminatory intent.
Second, Rabobank did not seem to have any problems with Kaabinejadian until he disclosed his Iranian origin. When he was first hired, Mapes knew he was Middle Eastern, but not specifically that he was Iranian. He worked through January and February, seeming without any conflicts with his coworkers and without any issues about his credit skills. On March 20, however, he took a vacation to Iran, "to visit his family." Before going, he "discussed [the trip] freely and openly" with Takata, Nichols, and others. And it was on March 14 that Nichols first complained about Kaabinejadian — the snowball that started the avalanche.
Third, the ultimate termination was largely based on Takata's statements to the effect that Nichols and Brown had resigned because of Kaabinejadian. As Kaabinejadian argues, however, there was evidence from which it was reasonably inferable that Takata lied. In their written resignations, Nichols and Brown stated their reasons for leaving, yet they did not mention Kaabinejadian. Takata maintained that they had told him — off the record, so to speak — that they were leaving because of Kaabinejadian. At his deposition, however, Nichols testified that he told Takata why he was leaving, and what he said was simply that he had been offered more money.
Obviously, there was a genuine history of conflict between Kaabinejadian on the one hand and Nichols and Brown on the other. Under the reallocation plan, however, Nichols and Brown did not work directly with Kaabinejadian anymore. A reasonable juror could conclude that Takata's claim that they resigned because of conflicts with Kaabinejadian was false.
Takata also claimed that three other relationship managers — Wanner, Rodgers, and Velasquez — were having problems with Kaabinejadian. He further claimed to have had "disturbing news" about Kaabinejadian from an independent contractor. At his deposition, however, he could not say what the disturbing news was. Wanner, too, had been reassigned under the reallocation plan. There was no corroborating evidence of any conflict between Kaabinejadian and Rodgers. Finally, while Velasquez claimed that his "problems" with Kaabinejadian "persisted," he admitted, "I don't remember specifics." Thus, once again, a reasonable juror could conclude that Takata was lying (or at least exaggerating).
Importantly, Mapes and Walker were well aware of the reallocation plan. Hence, they had reason to question Takata's claim that Nichols, Brown, and Wanner all continued to have problems with Kaabinejadian. Instead, they accepted it at face value. This suggests that they were using Takata's claims as a pretext.
Fourth, Walker did not follow up on Kaabinejadian's assertions that his coworkers were harassing and discriminating against him. On May 23, he told Walker that he was experiencing harassment and discrimination. Admittedly, he did not specifically say that the harassment and discrimination were based on national origin. Rabobank's Employee Handbook, however, provided, "Every reported complaint of harassment will be investigated thoroughly [and] promptly . . . ." (Emphasis added.) But Walker did nothing. Moreover, on June 12, Kaabinejadian told Walker again that he was experiencing harassment and discrimination. While he did not specifically say that it was based on national origin, he did say that he was going to complain to government agencies, thus implying that it was based on membership in a protected class. Once again, Walker did nothing. It is one permissible inference that Walker knew that his allegations were true.
Fifth, Walker claimed that Kaabinejadian was terminated based not only on conflict between him and his coworkers, but also on "his lack of requisite credit skills . . . ." Prior to Kaabinejadian's termination, however, Nichols and Brown were the only ones who complained about his lack of credit skills. After Nichols' first such complaint, in his March 14 memo, Walker investigated, but Mapes and Takata concluded that the matter was just a "conflict between . . . employees." Moreover, Mapes expressed disagreement with some of these complaints. He later testified: "Credit skills, . . . analysis of financials, cash flows, financial condition, [Kaabinejadian] in my opinion had good skills in that regard." On June 22 or 23, Mapes even assured Kaabinejadian that he had his "vote of confidence[.]"
Velasquez, too, believed that Kaabinejadian lacked credit skills — mainly because he had not approved any of Velasquez's proposed loans — but there is no evidence that he communicated this opinion to anyone.
In addition, one Keith Goff criticized Kaabinejadian's credit skills, but he was merely relying on what he had heard from Takata and unnamed relationship managers.
Walker later claimed that the reallocation plan was meant, in part, to "address" the perceived shortcomings in Kaabinejadian's "skillset." However, it is hard to see how merely shuffling the relationship managers below him would have any effect on this. Her notes of the June 28 conference call, in which the decision to terminate Kaabinejadian was made, do not reflect any discussion of his credit skills. Likewise, her notes of the July 5 meeting, at which Kaabinejadian was actually terminated, do not reflect any mention of his credit skills.
Thus, it is inferable that the assertion that Kaabinejadian was terminated because he lacked credit skills was pretextual. And if that was pretextual, then it is also inferable that the assertion that he was being terminated due to conflicts with his coworkers was likewise pretextual. After all, if Rabobank had confidence in its "conflicts" rationale, it would not have needed to gin up the additional "credit skills" rationale.
We recognize that Mapes made the ultimate decision to terminate Kaabinejadian, whereas the evidence of pretext cited above relates largely to Walker and Takata. Kaabinejadian, however, aptly relies on the so-called "cat's paw" theory. Under this theory, an employer can be liable for a termination decision by an unbiased decision-maker, provided the decision-maker was influenced by biased coworkers. (Reid v. Google, Inc., supra, 50 Cal.4th at p. 542; DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551-552; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113-116.)
Here, there can be little doubt that Walker and Takata at least influenced Mapes' decision. All three participated in the crucial June 28 conference call. During that call, Takata repeated the inferably false claim that Nichols and Brown had resigned — and that other relationship managers might resign — because of Kaabinejadian. It was Walker who first brought up the subject of termination, by asking Mapes if he thought Rabobank should keep Kaabinejadian as an employee. When Mapes said no, Walker and Takata promptly concurred, assuring him that "it was the right decision." Walker testified that Takata's input was "the catalyst for the decision." Rabobank admits that Mapes made the decision "in consultation with" Walker and Takata.
If we were free to evaluate the weight of the evidence, we would decide that Kaabinejadian was obnoxious and abrasive and properly terminated for this reason. Indeed, when the weight of the evidence is as persuasive as it is here, it is tempting to leap to the conclusion that no reasonable trier of fact could decide otherwise. Nevertheless, on this record, the only way to arrive at the decision that he was properly terminated is to believe certain evidence, while rejecting contrary yet credible evidence, and to draw certain inferences, while rejecting contrary yet reasonable inferences. On summary judgment, this is forbidden. "[T]he principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns. [Citations.] . . . 'A motion for summary judgment is not a trial upon the merits. It is merely to determine whether there is an issue to be tried.'" (Walsh v. Walsh (1941) 18 Cal.2d 439, 441-442.)
In sum, then, there was substantial evidence that Rabobank's stated reasons for the termination decision were pretextual, and that the decision was actually motivated by discriminatory and/or retaliatory animus.
IV
THE TRIAL COURT PROPERLY DENIED LEAVE TO AMEND
Kaabinejadian contends that the trial court erred by denying his motion to amend his complaint by adding a cause of action for intentional infliction of emotional distress.
A. Additional Factual and Procedural Background.
Early in the proceedings, the trial court sustained a demurrer to the entire first amended complaint — including a cause of action for intentional infliction of emotional distress — without leave to amend. In a previous appeal, we upheld that order with respect to the cause of action for intentional infliction of emotional distress, although we reversed it with respect to the other causes of action.
One day after Rabobank filed its motion for summary judgment, Kaabinejadian filed a motion for leave to file an amended complaint. He proposed to add a cause of action for intentional infliction of emotional distress. He also proposed to add two defendants — Walker (who had already been dismissed without prejudice) and Takata. He argued that he needed to amend because Rabobank had only recently produced Nichols' written resignation in discovery.
The motion was set for hearing on September 11, 2015. The motion for summary judgment was set for hearing on October 30, 2015, and the case was set for trial on November 30, 2015.
On October 30, 2015 — i.e., after the motion for leave to amend had already been denied — the trial court continued the hearing on the motion for summary judgment and took the trial date off calendar.
Rabobank opposed the motion. It argued, among other things, that Kaabinejadian had delayed unnecessarily in seeking leave to amend and that allowing amendment would be prejudicial.
After hearing argument, the trial court denied the motion. It ruled: "The court does not find any new factual basis or good cause shown to allow plaintiff to amend to state a cause of action for intentional infliction of emotional distress where the court of appeal has previously affirmed the trial court[']s sustaining of a demurrer without leave to amend as to that cause of action previously. There is also prejudice to the defendants in that trial is imminent and a summary judgment motion is pending. Notwithstanding the recent production of documents identified by plaintiff, the theory has not changed and plaintiff fails to establish how the production of these documents could cause him severe emotional distress nine years earlier."
B. Discussion.
"'Trial courts are vested with the discretion to allow amendments to pleadings "in furtherance of justice." [Citation.] That trial courts are to liberally permit such amendments at any stage of the proceeding, has been established policy in this state since 1901. [Citations.]' [Citation.] '"[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]" [Citation.]' [Citation.]" (Central Concrete Supply Co., Inc. v. Bursak (2010) 182 Cal.App.4th 1092, 1102.)
If a motion to amend is timely made, and if granting the motion will not prejudice the opposing party, it is error to deny leave to amend. (Dunzweiler v. Superior Court of Alameda County (1968) 267 Cal.App.2d 569, 577.) "However, '"even if a good amendment is proposed in proper form, unwarranted delay in presenting it may — of itself — be a valid reason for denial."' [Citation.]" (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Moreover, the trial court may deny leave to amend when amendment would prejudice the opposing party. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)
We may assume, without deciding, that this court's prior opinion, holding that the trial court properly sustained a demurrer to the cause of action for intentional infliction of emotional distress without leave to amend, did not absolutely bar Kaabinejadian from refiling the same cause of action. But even if so, he failed to explain his delay in seeking leave to refile. He claims that he acted in response to Rabobank's allegedly belated disclosure of Nichols' written resignation. However, the trial court asked him:
"THE COURT: [W]hat did they state as the reason you were being terminated?
"MR. KAABINEJADIAN: They said that I was being terminated because people had complained about me, and they left the company because of me.
"THE COURT: Okay. So now having found out that . . . based on the letter, it was not because of that; it was because of some other unrelated reason [Nichols] left, how did that cause you emotional distress nine years earlier?
"MR. KAABINEJADIAN: Because they misrepresented and they surprised me.
"THE COURT: No, no, no. . . . [t]here's nothing new with respect to the letter or the documents that you got that would give you a basis to now plead a claim as to . . . intentional infliction of emotional distress from nine years earlier."
We agree with the trial court. If Kaabinejadian had a viable cause of action for intentional infliction of emotional distress, he knew all of the facts underlying that cause of action long before he moved for leave to amend. Indeed, he had attempted to plead such a cause of action from the git-go. The disclosure of Nichols' written resignation in 2015 may have caused him emotional distress in 2015; nevertheless, it did not add any information relevant to his claim that he suffered actionable emotional distress in 2006. Accordingly, he did not show good cause for his failure to seek leave to amend earlier.
Separately and alternatively, Kaabinejadian also had to show that Rabobank would not be prejudiced. Rabobank had just filed a motion for summary judgment, addressing all three of the causes of action in the operative complaint. If the trial court granted leave to amend (on September 11), there would not have been enough time for Rabobank to file a new motion for summary judgment and have it heard before trial (on November 30). (See Code Civ. Proc., § 437c, subds. (a)(2) & (a)(3) [motion for summary judgment must be served at least 75 days before hearing and must be heard at least 30 days before trial].)
Kaabinejadian points out that the trial court later vacated the trial date. However, it did not do so until about a month and a half after it had already denied his motion for leave to amend. After it vacated the trial date, Kaabinejadian did not ask it to reconsider his motion.
"[W]hen a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, '[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a "moving target" unbounded by the pleadings.' [Citations.]" (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.)
Finally, Kaabinejadian was seeking to add two new defendants, Walker and Takata, in September. They would have had to file a responsive pleading by mid-October and to conduct all of their discovery by November 1. This unreasonable time frame would necessarily be prejudicial to them.
We therefore conclude that the trial court properly denied leave to amend.
V
THE TRIAL COURT PROPERLY DENIED THE MOTION FOR INSPECTION
Kaabinejadian contends that the trial court erred by denying his motion to compel the inspection of certain physical evidence.
A. Additional Factual and Procedural Background.
Initially, Rabobank produced 258 documents. It searched for emails by looking for Kaabinejadian's name (including variants thereof) in the "to" and "from" fields. Debbie Sellers, Rabobank's Chief Technology Officer, then stated in a declaration that it had not found any responsive emails.
"Shortly after[ward]," however, she realized that a mistake had been made — Rabobank should also have searched for Kaabinejadian's name in the "subject" and "content" fields. She caused the search to be redone; as a result, Rabobank produced approximately 2,000 more pages of documents.
Rabobank also located two backup tapes from 2006, but according to Sellers they were corrupted and unreadable. As she put it, Rabobank employees "couldn't get anything off the tapes."
When Walker was deposed, she produced some additional documents. It was explained that she had found them by searching her own "H: drive."
On or about April 24, 2015, Kaabinejadian served a demand for inspection. In it, he demanded, among other things, that an expert be permitted to inspect: (1) the corrupted backup tapes, and (2) the H: drives of Mapes, Takata, Walker, Nichols, Brown, and Velasquez, as well as his own H: drive.
In a "catch-all" demand, he also demanded inspection of "[a]ll computer hardware and software system or historic electronic storage systems which contain electronic stored data which relate to Plaintiff in any way produced from January 1, 2006 through April 1, 2015, other than items which are privileged as provided by law." In this appeal, however, according to the heading of this argument (see Cal. Rules of Court, rule 8.204(a)(1)(B)), his claim of error relates exclusively to his demand for inspection of the corrupted backup tapes and the H: drives.
According to Sellers, an H: drive "is a section of the Bank's network that is assigned to each of the individuals employed by the Bank at that time. It is not a 'computer drive' as it is commonly understood. Rather, it is essentially an index and file reference for the storage of information on the Bank's servers related to that employee. Because the [H: drive] is an index of documents, those documents are necessarily stored elsewhere on the Bank's computer systems."
Rabobank objected on grounds including that the requests were overbroad, burdensome, and oppressive and violated third parties' constitutional right to privacy.
In the "meet and confer" process, Kaabinejadian suggested that his expert not actually read any information that was retrieved until Rabobank had had the opportunity to determine which portions were discoverable. He also offered to permit a Rabobank employee to be present at the inspection.
Rabobank represented that only Walker's H: drive still existed; the other employees' H: drives had been deleted in the ordinary course of business when the employees left Rabobank. Post-2006 H: drives could be restored from backup tapes, but this would cost $1,800 per employee. It offered to search Walker's H: drive and to let Kaabinejadian specify the search terms. He did not accept this offer.
Kaabinejadian filed a motion to compel. He argued that he needed to inspect the corrupted discs "to determine if in fact the discs in question are corrupted and if so whether . . . data can nonetheless be retrieved or restored." He also argued that "[t]he emails that might be retrievable may contain" relevant evidence.
In its opposition, Rabobank argued that Kaabinejadian had not shown that any responsive documents existed that had not been produced.
The trial court ruled: "The motion is denied for lack of good cause. There is no showing that there is any missing evidence or that any 'smoking gun' evidence will be retrieved. There is no declaration from any expert establishing that anything s/he does can elicit data from a corrupt disc. There is no showing of how any such inspection will protect against data that is private or otherwise protected or produce evidence that is relevant to the subject matter of the litigation. Plaintiff has failed to demonstrate why defendant[']s attempt to further accommodate plaintiff by running additional name searches is insufficient. Plaintiffs statements of 'might' and 'may' are speculative and constitute a fishing expedition. There is no showing by plaintiff that there are any additional documents responsive to plaintiff[']s request that have not already been produced or are otherwise not privileged."
B. Discussion.
"A party may demand that any other party produce and permit the party making the demand . . . to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made." (Code Civ. Proc., § 2031.010, subd. (e).) In addition, "[a] party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party's behalf, to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made." (Id., subd. (c).)
A motion to compel compliance with an inspection demand must "set forth specific facts showing good cause justifying the discovery sought by the demand." (Code Civ. Proc., § 2031.310, subd. (b)(1).) In other words, "[a]lthough no showing of 'good cause' is required for the inspection demand, the demanding party must be prepared to make such showing if the demand is refused." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) Discovery, ¶ 8:1495.5, p. 8H-40.)
"We review the trial court's grant or denial of a motion to compel discovery for an abuse of discretion. [Citation.]" (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.) "'An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] . . . .' [Citation.]" (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 110.)
Here, the trial court explained its reasoning succinctly but thoroughly. Kaabinejadian failed to prove that any information existed that was subject to production but not yet produced. With regard to the 2006 backup tapes, Sellers — whom Kaabinejadian himself described as an "IT expert" — testified that the tapes were unreadable; Kaabinejadian did not introduce any contrary expert testimony. With regard to the H: drives, to the extent that the data in those drives was still in Rabobank's system, Rabobank had already searched for it and produced it. To the extent that it was no longer in Rabobank's system, Rabobank offered to reconstruct it from backup tapes at a cost of $1,800 per H: drive. Under Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal.App.4th 762, 773, it was entitled to insist that Kaabinejadian pay the reasonable costs of retrieving data from backup; there was no showing that this amount was unreasonable.
Kaabinejadian argues that there was no way an expert could know whether data could be retrieved from the corrupted backup tapes until he or she actually inspected them. Nevertheless, if his position were well-taken, presumably an expert could at least explain how Rabobank might be mistaken about the tapes being unreadable. Indeed, in his own declaration, he stated, "I . . . have consulted individuals who are knowledgeable about the subject of retrieval archival data from electronic records systems such as Rabobank's system and who are knowledgeable about the possibility of retrieving data from so-called 'corrupted' tapes, backup discs or hard drives. I have been advised by those individuals . . . that contrary to Ms. Sellers' opinion alleged corrupted tapes or backup discs can often be examined and data retrieved notwithstanding that a portion of the disc or tapes is corrupted." However, as this was hearsay, the trial court could reasonably disregard it.
Kaabinejadian also argues that Rabobank's claim that it did produce everything is untrustworthy because its employees were "incompetent" to search for responsive material. This is a reference to the fact that Sellers initially made the mistake of looking for responsive emails by searching only the "to" and "from" fields, instead of searching the entire email. However, she soon realized her mistake and corrected it, and Rabobank produced additional documents. Kaabinejadian has not pointed out any way in which her second search was inadequate.
Kaabinejadian claims that Rabobank demonstrably failed to produce some documents. Walker's event log referred to a May 17 email from her to Nichols and a June 12 email from Takata to her. Rabobank, however, never produced these two emails. Kaabinejadian also notes that, at her deposition, Walker produced documents from her H: drive that Rabobank had failed to produce.
Rabobank claims that it did, in fact, produce the May 17 email. However, it cites an email from Nichols to Walker, not the one from Walker to Nichols.
Kaabinejadian also claims that his own H: drive "has not been produced and cannot be located." However, the portions of the record that he cites do not support that claim. In any event, assuming this is true, it comes within the reasoning applicable to all of the other H: drives — the H: drives themselves had been deleted; the underlying data either (1) no longer existed, (2) had already been produced, or (3) could be recreated from backup tapes, provided Kaabinejadian was willing to pay for this.
Certainly the trial court could have found, based on this evidence, that the completeness of Rabobank's production was suspect. However, it was not required to do so. Kaabinejadian's original request for production of documents is not in the record. Thus, there was no evidence that any of these documents were actually within the scope of the request. Even if they were, there was no evidence that the two emails still existed. Likewise, there was no evidence that, beyond the documents that Walker produced at her deposition, there were any more responsive documents on her H: drive. Rabobank had offered to search her H: drive using any search terms that Kaabinejadian might specify, but he had not taken it up on this offer.
For these reasons, the trial court did not abuse its discretion by denying Kaabinejadian's motion to compel inspection.
VI
THE TRIAL COURT PROPERLY DENIED SANCTIONS
FOR SPOLIATION OF EVIDENCE
Kaabinejadian contends that the trial court erred by denying his motion for sanctions, which was based on asserted spoliation of evidence.
A. Additional Factual Background.
In this appeal, Kaabinejadian relies on two instances of asserted spoliation: (1) Walker's destruction of her notes, and (2) the loss or destruction of Kaabinejadian's H: drive.
The caption of Kaabinejadian's argument is limited to "spoliation of evidence involving shredded notes and loss of employees['] so-called H drives." (Capitalization altered.) Any contention outside the scope of the caption has been forfeited. (Cal. Rules of Court, rule 8.204, subd. (a)(1)(B); Phillips v. Honeywell International Inc. (2017) 9 Cal.App.5th 1061, 1077-1078.)
In addition, the text of his argument specifies only two instances of asserted spoliation: (1) "Walker . . . destroying her notes," and (2) the "failure to preserve" "[p]laintiff's H drive." "Ordinarily, an argument not raised in the opening brief is forfeited on appeal. [Citation.]" (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 455.)
Admittedly, Kaabinejadian briefly mentions "the other 6 instances of spoliation presented to the Court below," citing his trial court memorandum of points and authorities. However, "[i]t is inappropriate for an appellate brief to incorporate by reference arguments contained in a document filed in the trial court. [Citation.] Such practice does not comply with the requirement that an appellate brief 'support each point by argument and, if possible, by citation of authority.' (Cal. Rules of Court, rule 8.204(a)(1)(B).)" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854.)
We summarize the facts relating to these two instances, as shown by the evidence in connection with Kaabinejadian's motion for sanctions.
In June 2006, Kaabinejadian notified Rabobank that he intended to "file . . . complaints with appropriate Federal and California governmental agencies on account of racial and ethnic discrimination and harassment . . . ."
In July 2006, Mapes emailed a Rabobank IT technician stating: "We may have some issues with Mr. [Kaabinejadian]. I think it would be appropriate to keep his H drive files for a longer period of time than usual. Can you set up a tickler to check with me in six months, please." The technician agreed to do so. Mapes did not recall what, if anything, happened six months later.
At her deposition, Walker testified that she created her event log on an ongoing basis between May 2006 and sometime in 2007. It was "built off of handwritten notes . . . ." She had no specific recollection of what had happened to the notes, but it would have been her practice to shred them after using them to update the log.
B. Additional Procedural Background.
Kaabinejadian filed a motion for issue, evidence, and monetary sanctions against Rabobank based on spoliation of evidence. In opposition, Rabobank argued, among other things, that Kaabinejadian had not shown that any spoliation occurred. After hearing argument, the trial court denied the motion, on the ground that Kaabinejadian had failed to prove spoliation.
C. Discussion.
If the trial court finds a "misuse of the discovery process," it can impose issue sanctions, evidence sanctions, or monetary sanctions. (Code Civ. Proc., § 2023.030, subd. (a)-(c).) "[T]he intentional destruction of evidence after litigation has commenced . . . is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. [Citations.]" (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) By contrast, the innocent destruction of evidence in the ordinary course of business is not subject to sanctions. (See New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431; see also Code Civ. Proc., § 2017.020, subd. (c)(1).) Likewise, the merely negligent destruction of evidence is not sanctionable. (See Williams v. Russ, supra, at pp. 1223-1224.)
The trial court could reasonably find that Walker's destruction of her notes was done innocently, in the ordinary course of business. There was no evidence that her event log differed from her notes in any material respect. (Cf. Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 184, 190, 193 [destruction of raw notes constituted spoliation where trial court disbelieved witness's testimony that he included all of the same information in his report].) Kaabinejadian's suspicions are not evidence.
With respect to Kaabinejadian's H: drive, there was no evidence that any potentially relevant information was actually missing. As mentioned earlier, the H: drive was merely an index of documents located elsewhere on Rabobank's system. If and when Kaabinejadian's H: drive was deleted, Rabobank's practice would have been to "transfer any and all files out of that folder into another location . . . ." Thus, it did not appear that deleting the H: drive actually deleted any potentially relevant information. In any event, there was no evidence as to how or when Kaabinejadian's H: drive was, in fact, deleted. Thus, there was no evidence that the deletion was not innocent or, at worst, negligent.
We therefore conclude that the trial court did not abuse its discretion by denying Kaabinejadian's motion for sanctions.
VII
OTHER ISSUES
In the "Conclusion" section of his brief, Kaabinejadian complains that, due to the applicable limit on brief length (Cal. Rules of Court, rule 8.204(c)(1)), he was not able to challenge other rulings by the trial court. However, he could have obtained permission to file a longer brief, provided he could show good cause. (Cal. Rules of Court, rule 8.204(c)(5).) He never filed a motion seeking such permission.
We therefore deem him to have forfeited any challenge to the trial court's other rulings. (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1613, fn. 2.)
VIII
DISPOSITION
The judgment is reversed with respect to the first cause of action (employment discrimination) and the second cause of action (wrongful termination in violation of public policy); the judgment is affirmed with respect to the third cause of action (breach of contract). In the interests of justice, each side shall bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.