Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 464249
Reardon, Acting P.J.
The trial court granted summary judgment to respondents Sears Roebuck and Co. and Valerie Funai on appellant Gholamali Roshandell’s complaint for wrongful termination, malicious prosecution, and intentional infliction of emotional distress. On appeal from the resulting judgment, Roshandell, acting in propria persona, contends that because the testimony of key witnesses was perjured, the trial court erred in granting summary judgment. We affirm the judgment.
I. FACTS
A. Employment History
In 2003, Gholamali “Fareed” Roshandell began working as a sales associate for respondent Sears Roebuck and Co. in the San Bruno store’s home appliances department. By 2004, he managed Sears’s home appliances department in its Hillsdale store in San Mateo.
In February 2005, Valerie Funai became the manager of the Hillsdale Sears store. She was critical of Roshandell’s job performance. In May 2005, Rodney Rosenthal—the district manager and Funai’s supervisor—inquired about Roshandell’s work. He and Funai both concluded that Roshandell and his sales associates were not marketing their products using the process that Sears wanted them to use.
In June 2005, Roshandell fell off a ladder in the stock room at Sears, prompting a workers’ compensation claim. He injured his neck and back, suffering neurological damage, and requiring both medical and psychological treatment. After two months, he returned to work on a modified schedule with restrictions on sitting, standing, and lifting. Eventually, he returned to fulltime work. After the accident, he was slow to do his work. He suffered constant headaches, low back pain, and back problems, all of which required him to take medication. Funai continued to have concerns about his job performance.
There was some evidence that Funai doubted whether the accident had been real.
In October 2005, Funai received complaints from customers and sales associates that Roshandell had offered to lower the price of merchandise in exchange for the purchase of a protection agreement—a kind of extended warranty. Roshandell was known for selling a high percentage of protection agreements, but it was impermissible to condition a sale on whether a customer purchased a protection agreement. When Funai asked him about one complaint, Roshandell accused the customer of lying. She spoke with Jason Kelley, loss prevention manager for the Hillsdale store, about these complaints.
After Funai asked him to investigate the customer complaints, Kelley reviewed Roshandell’s store purchases, turning up numerous suspicious transactions. Roshandell had purchased or authorized as many as 10 items sold at reduced prices. Some of these transactions were captured on videotape. Some involved a 991 sticker price reduction. Funai did not initiate or assist in Kelley’s investigation. Kelley did not discuss any specific aspects of the investigation with Funai while it was ongoing.
At Sears, a 991 sticker goes onto merchandise that is somehow damaged. It is sold at a reduced price. As a manager, Roshandell had the authority to designate merchandise as a 991 item and reduce its price. The price reduction is assigned by a computer program, to which Roshandell had password access. The longer a 991 item remained unsold, the lower the price would be.
By November 2005, Kelley had uncovered over $3,000 in shortages attributable to Roshandell. He concluded that Roshandell had created 991 tag reductions for new merchandise that he or his friends purchased at drastically reduced prices. On November 21, 2005, Kelley told Funai of his findings. Kelley and his supervisor Erick Jefferson—the district loss prevention manager—met with Roshandell in Funai’s office on November 21, 2005, to discuss the shortages. Roshandell denied ever creating a 991 tag, although a machine to create one and torn tags were found in his office. At the close of the interview, Jefferson decided that Roshandell should be prosecuted. Kelley made a citizen’s arrest and called the San Mateo Police Department.
At Sears, theft is a terminable offense. Rosenthal and Jefferson decided that Roshandell should be terminated for embezzlement from the company. Funai agreed with this decision. Sears terminated Roshandell’s employment on November 25, 2005.
B. Criminal Prosecution and Civil Action
In November 2005, Roshandell was arrested and charged with 10 theft offenses, which were eventually reduced to three misdemeanor counts of petty theft. (See Pen. Code, § 490.) Funai and Kelley testified at his trial. He was acquitted of two charges and the jury was unable to reach a verdict on the third one. The trial court declared a mistrial as to that charge and the prosecutor eventually dismissed this charge.
In July 2007, Roshandell filed suit against Sears and Funai, alleging causes of action against each of them for wrongful termination, malicious prosecution, and intentional infliction of emotional distress. He claimed suffering $98,000 in lost income and anticipated that he would lose $400,000 in future income.
We were not assisted in our resolution of the issues presented on appeal by the parties’ failure to designate the complaint as part of the record on appeal. On our own motion, we obtained a copy of the July 2005 complaint, of which we take judicial notice. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
In a February 2008 deposition, Roshandell testified that he did not like Funai’s management style and had once complained about her to Rodney Rosenthal, the district manager. After his complaint, she apologized to him. Once, according to Roshandell, she commented that, as a person from the Middle East, he was responsible for the Iraq war. He regarded this comment as discriminatory. He did not report Funai to Sears about this comment, although he was aware that the store had an antidiscrimination policy.
Funai testified that she conversed with Roshandell about his life in Iran, but denied ever making any derogatory remarks about his ethnicity or religion.
Roshandell also testified that he was wrongly arrested—that he had done nothing wrong. He thought that Funai truly believed that he had committed the crimes that Sears alleged against him. He believed that Funai and Kelley twisted the circumstances, conspiring to terminate him. He believed that his termination was based on his national origin and his disability.
In her deposition, Funai testified that she was convinced that Roshandell was stealing from Sears. Kelley said the same.
In April 2008, Sears and Funai moved for summary judgment on all three causes of action. In support of the motion, Sears and Funai submitted a statement of undisputed material facts. Roshandell opposed the motion for summary judgment. Sears objected to some of the evidence that Roshandell offered in opposition to the motion for summary judgment. The trial court sustained some of these objections and overruled others. It overruled Roshandell’s objections to some of the evidence offered by Sears and Funai.
After a hearing on the motion, the trial court found no triable issue of material fact. In July 2008, it granted summary judgment to Sears and Funai on all three causes of action. On the wrongful termination cause of action, the trial court found that the evidence showed a thorough investigation giving rise to a reasonable belief that Roshandell had committed theft, that he should have been terminated and that he should have been reported to police. It found no admissible evidence to contradict Sears and Funai’s assertion that Roshandell was terminated based on a good faith belief that he committed theft. It found that there was no evidence that Roshandell’s termination was contemplated before the evidence of theft came to the employer’s attention. The issue was not whether a theft actually occurred, but whether Sears officials had a good faith belief that Roshandell had embezzled from the company. It concluded that this reasonable belief doomed the malicious prosecution and intentional infliction of emotional distress causes of action as well. The trial court also held that Funai—a supervisor, not an employer—could not as a matter of law be held liable for wrongful termination. Judgment was entered accordingly.
II. SUMMARY JUDGMENT
A. Standard of Review
On appeal, Roshandell contends that the trial court erred by granting the motion for summary judgment. On appeal from an order granting summary judgment, we conduct an independent review of the facts before the trial court. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz); Lockheed Litigation Cases (2004)115 Cal.App.4th 558, 563; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 469-470.) We exercise our independent judgment about the legal effect of the undisputed facts disclosed by the parties’ papers. (See Federal Deposit Ins. Corp. v. Superior Court (1997) 54 Cal.App.4th 337, 345.) We consider all evidence set forth in the motion for summary judgment and the opposition to it, except any evidence to which objections have been made and sustained. (See Guz, supra, 24 Cal.4th at p. 334; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)
The trial court ruled on objections to some of the evidence offered in support of and in opposition to the motion for summary judgment. At the hearing on the motion and in its order granting summary judgment, the trial court ruled on these objections. We have omitted any reference to evidence on which the trial court sustained an objection.
On each cause of action, we determine anew whether Sears—as the party seeking summary judgment—has conclusively negated a necessary element of each of Roshandell’s causes of action, such that it is entitled to summary judgment as a matter of law. (See Guz, supra, 24 Cal.4th at p. 334; Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 612; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 432; see also Code Civ. Proc., § 437c, subd. (c) (section 437c).) When doing so, we review the trial court’s ruling, not its rationale. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 373.)
Neither the moving party nor the opposing party may rely on the allegations or denials in the pleadings, but must set forth specific facts showing that a triable issue of material fact exists. (See § 437c, subd. (p)(1), (2); Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805 (Horn).) A triable issue of material fact is not raised by speculation or mere possibility. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.) Supporting and opposing affidavits or declarations must be based on personal knowledge, must set forth admissible evidence and must make an affirmative showing that the affiant is competent to testify on the matters stated in them. (See 437c, subd. (d); Stratton v. First Nat. Life Ins. Co. (1989)210 Cal.App.3d 1071, 1083.)
B. Credibility
On appeal, Roshandell’s primary claim is that Funai and Kelley perjured themselves in their declarations, such that the trial court’s reliance on those declarations when it granted the motion for summary judgment was erroneous. He contends that Funai was untruthful when she testified that she did not take part in his termination and that Kelley was untruthful when he testified to events shown on videotape that Roshandell asserts the tape did not show. Roshandell reasons that the allegedly perjured testimony undermined the evidence, such that the trial court could not properly conclude that Sears and Funai had a good faith belief that he committed theft.
Apparently, the videotapes were not viewed by the trial court. They are not part of the record on appeal. On appeal, our review is limited to the facts contained in the documents presented in the trial court. (See Federal Deposit Ins. Corp. v. Superior Court, supra, 54 Cal.App.4th at p. 345.)
The trial court relied on the undisputed facts that Kelley had come to the conclusion that Roshandell had stolen from Sears; that Funai relied on Kelley’s investigation and his conclusion when determining that Roshandell had committed theft; and that Roshandell was terminated for theft—a violation of the Sears code of conduct. Roshandell challenges Kelley’s reliance on the underlying evidence of two of the alleged thefts. Even if we disregarded these two alleged thefts, we are satisfied that the evidence of some or all of the eight remaining alleged thefts provide ample evidence to support the trial court’s finding that Sears officials reasonably believed that Roshandell had stolen from the company in violation of the company’s code of conduct.
At his deposition, Roshandell admitted that Funai truly believed that he had committed the crimes that Sears alleged against him. When deposition testimony offers an admission against the interest of the opponent of a motion for summary judgment and that evidence is relevant to the determination of the motion, courts give that admission a deference not normally accorded to evidentiary allegations in affidavits. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [under prior law, before § 437c, subd. (b), specifically authorized trial court consideration of deposition testimony]; see also 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 229, pp. 670-672.) Thus, even if we accept Roshandell’s claim that Kelley’s testimony lacked credibility on some of the alleged thefts, other independent evidence of theft was sufficient to support the trial court’s factual finding that Sears officials reasonably believed that Roshandell had stolen from the company.
C. Wrongful Termination
We have also made an independent evaluation of the trial court’s finding that there was no triable issue of material fact on any of Roshandell’s three causes of action. Roshandell alleged a cause of action for wrongful termination against Sears. He alleged that he was terminated in violation of public policy because of his disability, and his Iranian ethnicity. California has adopted the three-stage burden-shifting approach established by the United States Supreme Court for trying discrimination claims. (Guz, supra, 24 Cal.4th at p. 354; Horn, supra, 72 Cal.App.4th at pp. 805-807; see Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-260 (Burdine).) This approach reflects the principle that direct evidence of intentional discrimination is rare, requiring such claims to be proven by circumstantial evidence. By applying successive steps of increasingly narrow focus, the three-part test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and that are not satisfactorily explained. (Guz, supra, 24 Cal.4th at p. 354.) Under thisanalysis, the burden of producing evidence shifts between the parties. However, Roshandell—as the plaintiff—always bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that he was the victim of intentional racial discrimination. (See St. Mary’s Honor Center v. Hicks (1993)509 U.S. 502, 507, 514 (St. Mary’s); Burdine, supra, 450 U.S. at pp. 254, fn. 7, 256; Guz, supra, 24 Cal.4th at p. 356.)
Roshandell’s initial burden is to prove a prima facie case of discrimination by a preponderance of evidence. (See Burdine, supra, 450 U.S. at pp. 252-253; Guz, supra, 24 Cal.4th at p. 354; Horn, supra, 72 Cal.App.4th at p. 806.) He must establish actions taken by Sears from which one could infer—if the actions were unexplained—that it is more likely than not that they were based on a prohibited discriminatory criterion. (See Guz, supra, 24 Cal.4th at p. 355.) He may establish a prima facie case of discrimination by showing evidence that (1) he belongs to a protected class; (2) his job performance was satisfactory; (3) he was discharged; and (4) his job was filled by an individual of comparable qualifications who was not in the protected class. (See Burdine, supra, 450 U.S. at pp. 253-254 fn. 6, 258; Guz, supra, 24 Cal.4th at p. 355.)
The burden of establishing a prima facie case is not difficult to meet, as it is only intended to eliminate the most patently meritless claims at the outset of the case. (Burdine, supra, 450 U.S. at pp. 253-254; Guz, supra, 24 Cal.4th at pp. 354-355.) The adequacy of the Roshandell’s prima facie case is initially a question of law for the trial court to resolve. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201-202.) On appeal, we consider anew whether the appellant has established his or her prima facie case. (See Guz, supra, 24 Cal.4th at p. 334; Horn, supra, 72 Cal.App.4th at p. 807.) We assume arguendo that the appellant has met this minimal requirement. (See Guz, supra, 24 Cal.4th at p. 355.)
Roshandell’s prima facie case gives rise to a mandatory rebuttable presumption of discrimination. (See Guz, supra, 24 Cal.4th at p. 355; see St. Mary’s, supra, 509 U.S. at p. 506; Burdine, supra, 450 U.S. at p. 254, fn. 7.) That presumption requires us to conclude that unlawful discrimination occurred unless the respondent offers an explanation that rebuts the prima facie case. (See St. Mary’s, supra, 509 U.S. at pp. 506-507.) Thus, at this stage, the burden of producing evidence shifts to Sears to offer admissible evidence that Roshandell’s termination of employment was made for a legitimate, nondiscriminatory reason. (See Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806; see also § 437c, subd. (c) [requiring competent, admissible evidence on summary judgment].) At this stage, it need not persuade the trier of fact that it was actually motivated by the proffered reasons. It is sufficient if Sears’s evidence raises a genuine issue of fact about whether it discriminated against Roshandell. The explanation must be legally sufficient to justify judgment for Sears, if a trier of fact found the evidence credible. (See Burdine, supra, 450 U.S. at pp. 254-255; Guz, supra, 24 Cal.4th at pp. 355-356; Horn, supra, 72 Cal.App.4th at p. 806; see also St. Mary’s, supra, 509 U.S. at pp. 506-507, 509-510.)
Sears offered undisputed evidence that Roshandell’s termination was the result of a reasonable belief that he committed theft. For our purposes, it does not matter if Roshandell actually committed theft, so long as Sears and Funai reasonably believed that he did. (See King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433.) The trial court found that Sears conducted a thorough investigation and that undisputed evidence showed the findings of that investigation gave rise to a reasonable belief that Roshandell had committed theft. We find that the evidence offered by Sears that its termination was based on its officials’ reasonable belief that Roshandell had stolen from the store meets the employer’s burden of producing evidence of a legitimate reason for the termination.
Once Sears met this burden of producing evidence, the presumption of discrimination that resulted from Roshandell’s prima facie case is rebutted and disappears. (See Guz, supra, 24 Cal.4th at p. 356; see also St. Mary’s, supra, 509 U.S. at pp. 507, 510-511; Burdine, supra, 450 U.S. at p. 255.) At this third stage, Roshandell must meet the burden of proving by a preponderance of evidence that Sears’s stated reasons were not its true reasons, but a pretext for discrimination. (See St. Mary’s, supra, 509 U.S. at pp. 508, 515; Burdine, supra, 450 U.S. at p. 256; Guz, supra, 24 Cal.4th at p. 356; Horn, supra, 72 Cal.App.4th at p. 806.)
This appeal arose after an order granting summary judgment—a fact that also plays a part in our analysis of this final aspect of the three-part test for discrimination. On a motion for summary judgment, the moving party must establish entitlement to judgment as a matter of law. (Guz, supra, 24 Cal.4th at p. 356; see § 437c, subd. (c).) Sears made a facially dispositive showing of nondiscriminatory reasons for termination, entitling it to summary judgment if Roshandell does not rebut its evidence by demonstrating a triable issue of material fact about the employer’s reason for termination. (See Guz, supra, 24 Cal.4th at pp. 357, 360; see also Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951 [FEHA case].) The ultimate issue is whether Roshandell’s evidence would allow a reasonable trier of fact to rationally conclude that Sears engaged in intentional discrimination. (Horn, supra, 72 Cal.App.4th at p. 807; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
At this stage, to avoid summary judgment, Roshandell must offer substantial and specific evidence that Sears’s stated reasons were pretextual. He cannot meet this burden of proof by merely reciting the facts in his prima facie case and denying the credibility of the respondent’s evidence. An issue of fact can only be created by an actual conflict of evidence, not by speculation or conjecture. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433; Horn, supra, 72 Cal.App.4th at pp. 807, 817; see St. Mary’s, supra, 509 U.S. at p. 509.)
In the case before us, Roshandell offered no admissible evidence that a discriminatory reason motivated Sears to terminate him. (See King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433.) His subjective beliefs cannot create a genuine issue of fact to preclude summary judgment. In addition, he offered no evidence to establish an actual causal link between a prohibited motivation and his termination. (See id. at pp. 433-434.) Roshandell’s speculative and unsupported evidence would not allow a reasonable trier of fact to find pretext by a preponderance of evidence. Thus, the trial court properly granted Sears summary judgment on the wrongful termination cause of action.
D. Malicious Prosecution
Roshandell also alleged a cause of action for malicious prosecution against Sears, alleging that its officials caused an unfounded criminal action to be filed against him. To prove a cause of action for malicious prosecution, a plaintiff must show a judicial proceeding that was favorably terminated, a lack of probable cause, and malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874; Jaffe v. Stone (1941) 18 Cal.2d 146, 149.) The issue of whether the criminal action was brought against Roshandell without probable cause is an issue of law, to be determined by a court. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875.) The undisputed fact that Sears terminated Roshandell because of its officials’ reasonable belief that he committed theft against the company negates any suggestion that Sears officials acted without probable cause when they initiated criminal action against him. Thus, the trial court properly granted summary judgment to Sears on the malicious prosecution cause of action.
E. Intentional Infliction of Emotional Distress
Roshandell also alleged a third cause of action against Sears—one for intentional infliction of emotional distress. In order to establish a prima facie case of intentional infliction of emotional distress, Roshandell must prove inter alia outrageous conduct by Sears and Funai. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) The undisputed fact that Sears officials reasonably believed that Roshandell had committed theft against the company negates any allegation of outrageous conduct on Sears’s part. Thus, the trial court properly granted summary judgment to Sears on the cause of action for intentional infliction of emotional distress.
F. Funai’s Liability
Finally, Roshandell alleged each of these cause of action against his employer and his supervisor Funai. Only an employer can be held liable for wrongful acts related to an employee’s termination, a supervisor cannot. (See Reno v. Baird (1998) 18 Cal.4th 640, 663-664.) Thus, even if Roshandell is correct that Funai was involved in his termination, she cannot be held individually liable on any of these causes of action as his supervisor.
III. OTHER ISSUES
In his reply brief, Roshandell purports to raise several additional issues—that the summary judgment was based on extrinsic fraud or mistake; that the trial court rulings were an abuse of discretion; that the respondents had a discriminatory motive when terminating his employment; and that Funai made the decision to terminate him with Rosenthal’s approval. To the extent that these issues are related to the issues raised in his opening brief, we have already resolved them against Roshandell. To the extent that they were not raised in his opening brief, we will not address them. It is unfair for an appellant to raise issues for the first time on appeal in a reply brief, as this practice deprives the respondents of any opportunity to respond. (See Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 329, fn. 5; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 723, pp. 790-791.)
As Sears and Funai established that Roshandell cannot prove all the required elements of any cause of action alleged in his complaint, the trial court properly granted summary judgment to them. (See § 437c, subd. (c); King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 432.)
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.