Opinion
B163047.
11-24-2003
TITO A. THOMAS, Plaintiff and Appellant, v. BRISTOL FARMS, INC., Defendant and Respondent.
Tito A. Thomas, in pro. per., for Plaintiff and Appellant. OMelveny & Myers, Apalla U. Chopra and Maria OLeary Gutierrez for Defendant and Respondent.
Plaintiff and appellant Tito A. Thomas (Thomas), in propria persona, appeals a judgment following a grant of summary judgment in favor of his former employer, defendant and respondent Bristol Farms, Inc. (Bristol Farms).
Thomass status as a party appearing in propria persona does not provide a basis for preferential consideration. A party proceeding in propria persona "is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Indeed, " `the in propria persona litigant is held to the same restrictive rules of procedure as an attorney. " (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
The issue presented is whether any triable issues of material fact are present.
Thomas has not met his burden of demonstrating any error in the trial courts ruling. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
In February 1997, Bristol Farms hired Thomas as an at-will part-time employee in the maintenance department of its Long Beach store. It later transferred Thomas to a courtesy clerk position, in which his primary duties were to bag groceries, retrieve shopping carts from the parking lot, offer customers carry-out assistance and help customers around the store.
While employed at Bristol Farms, Thomas was the subject of numerous documented instances of poor performance, misconduct, and complaints from co-workers and customers. For example, a co-worker reported that Thomas had stated hed like to stab a customer who pulled in front of him when he was bringing in carts from the parking lot, and that he was going to shoot someone who pulled in front of him.
In the six months preceding his termination, Bristol Farms received complaints from eight different employees regarding Thomass profane, angry and/or threatening behavior toward Bristol Farms employees and customers. During this period, Thomas threatened physical violence against more than one co-worker on more than one occasion, claimed he worked in a gun shop and had access to guns and was willing to use them, and expressed respect for a disgruntled individual who "shot up" a workplace in Wakefield, Massachusetts.
On January 17, 2001, Bristol Farms terminated Thomass employment on the grounds that he refused to wait on customers who he believed were rude to him or disrespected him; he used obscene language with other employees and in the presence of customers; and he had threatened other employees with violence.
Following his termination, Thomas returned to the Long Beach store and threatened to retaliate against an employee who he believed to be responsible for his termination. In May 2001, Bristol Farms successfully obtained a permanent injunction requiring Thomas to stay 100 yards away from its Long Beach store and from a certain employees person and residence for a three-year period.
2. Proceedings.
On January 2, 2002, Thomas filed suit against Bristol Farms in propria persona, alleging causes of action for race discrimination in employment pursuant to 42 United States Code sections 2000e et seq. (title VII); deprivation of the right to make and enforce contracts pursuant to 42 United States Code section 1981 (section 1981); and defamation.
Bristol Farms answered the complaint, denying the allegations and asserting various affirmative defenses.
On September 25, 2002, Bristol Farms filed a motion for summary judgment. Bristol Farms contended the title VII claim failed as a matter of law because Thomas failed to exhaust his administrative remedies; his claim he was terminated on account of his race was meritless; his allegations of racial harassment likewise were meritless because there was no evidence the conduct was severe or pervasive; Thomas failed to use Bristol Farms internal complaint mechanism, barring his harassment claim; and the customer conduct at issue did not rise to the level of harassment based on race.
With respect to the section 1981 claim, Bristol Farms contended it failed as a matter of law because there was no contract between it and Thomas, and in any event, Thomas failed to demonstrate Bristol Farms intended to discriminate based on race in the making and enforcing of contracts. Finally, Thomass defamation claim was meritless because statements made to the police, in judicial proceedings or in conjunction with a judicial proceeding are subject to the litigation privilege.
Bristol Farms motion was supported, inter alia, by the declarations of Yolie Pepin, director of human resources; Sam Masterson, vice president of store operations/retail; and Jerry Parrick, loss prevention supervisor. These declarations, with supporting exhibits, set forth the events leading up to Thomass termination.
Thomas filed an opposing declaration wherein he asserted he was treated differently on account of his race, claimed the accusations against him were false, and disputed the veracity of the allegations in his personnel file.
On October 29, 2002, the matter came on for hearing. After taking the matter under submission, the trial court granted summary judgment, ruling as follows: " `This is an action for damages for defamation and deprivation of rights secured by Title VII of the Civil Rights Act of 1964, . . . ; and 42 USC Section 1981, providing for the redress of deprivation of the right to make and enforce contracts and to the full and equal benefit of all laws as enjoyed by white citizens. [¶] Plaintiff . . . does not dispute that he did not file a charge with the EEOC and never received a right to sue letter with the EEOC. A plaintiff must exhaust his administrative remedies by filing a charge of discrimination with the EEOC and then receive a right to sue letter from the EEOC. [Citation.] As plaintiff has not exhausted his administrative remedies, that portion of his complaint seeking relief under Title VII is barred.
"Plaintiff also does not dispute that he does not have a contract with defendant, therefore, his cause of action based upon breach of contract fails.
"Plaintiff does not dispute that the statements he alleges are defamatory are statements which were submitted in support of a preliminary injunction and in statements to the police. As such, they are privileged under Civil Code 47(b).)
"Finally, plaintiff has not shown there was a nexus between the termination of his employment and discrimination. There was no harassment that was so severe or pervasive that it changed the conditions of employment and created an abusive working environment. Plaintiff does not dispute that defendant received several complaints from employees and customers concerning his failure to follow directions, failure to perform his duties, kicking lockers, driving too fast in the parking lot, loud complainants [sic] and uses of profanity in front of customers, threats of violence and myriad of other problems. Of the dozens of complaints set forth by defendant, plaintiff disputes the veracity of only a few. The many complaints regarding plaintiffs performance establish that the termination of plaintiffs employment was based on legitimate, non-discriminatory factors."
Thomas filed a timely notice of appeal from the judgment.
CONTENTIONS
Thomas contends: Bristol Farms moving declarations were insufficient to sustain a summary judgment; the moving declarations were deficient on various grounds, including hearsay, and the contents thereof were not based on the personal knowledge of the declarants; and his opposing declaration is sufficient to raise triable issues of fact.
DISCUSSION
1. Standard of appellate review.
As stated in PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590 (disapproved on other grounds in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11), summary judgment "motions are to expedite litigation and eliminate needless trials. [Citation.] They are granted `if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. [Citations.]"
A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., §437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A defendant has shown the plaintiff cannot establish at least one element of the cause of action "by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . ." (Aguilar, supra, at p. 854.) Once the moving defendant has met its initial 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. (Id. at p. 849.)
We review the trial courts ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)
2. Thomas failed to preserve his evidentiary objections for appeal.
Thomas contends the declarations of Pepin, Masterson and Parrick failed to state facts sufficient to entitle Bristol Farms to summary judgment because the declarations consist of statements of ultimate facts, "conclusions of fact," argumentative matter and statements based on hearsay and not upon the personal knowledge of the declarants. The argument is unavailing.
An appellant who contends the trial court granted summary judgment based on inadmissible evidence must raise the evidentiary objections in the trial court in the first instance and must obtain rulings thereon. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) Because Thomas failed to raise these objections below and did not secure rulings thereon, the objections are waived.
3. Thomas has not met his burden as the appellant of identifying any triable issues of material fact which would warrant reversal.
It is rudimentary that a judgment or order of a lower court is presumed correct, and it is an appellants burden affirmatively to show error. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) Thomass opening brief does not meet this burden. The brief lacks any discussion of the essential elements of his various causes of action, does not address the contents of the moving declarations, and does not specify in what manner the showing made by Bristol Farms fell short of entitling it to summary judgment.
The extreme inadequacy of the brief "evidences a misconception of the respective duties of counsel and the courts." (Estate of Good (1956) 146 Cal.App.2d 704, 706.) It is not this courts role to act as backup counsel for Thomas in the prosecution of his appeal. (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164) An appellate brief should contain a legal argument with citation of authorities on the points made, and if not furnished on a particular point, the contention is waived. (Ibid.) Thomass conclusionary argument that Bristol Farms did not make a sufficient showing to entitle it to summary judgment is deemed waived.
We are mindful that a summary judgment is reviewed de novo (Rosse v. DeSoto Cab Co., supra, 34 Cal.App.4th at p. 1050), which simply means our review of the trial courts decision is independent rather than deferential. Nonetheless, it is still the appellants burden to articulate a legal argument as to why the trial courts decision was erroneous. Thomas has not done so. Instead of furnishing a specific argument based on the facts in the record and the law applicable to this case, the opening brief merely sets forth general principles pertaining to summary judgments and then reiterates the standard of appellate review.
It is only in the final paragraph of the opening brief that Thomas even touches on the specifics of this case. We address those arguments seriatim.
First, Thomas points out that he filed complaints with the California Department of Fair Employment and Housing (DFEH). Presumably, Thomas is trying to show he exhausted his administrative remedies by filing a charge with the DFEH and obtaining a right-to-sue letter. However, as the trial court noted, a right-to-sue letter from the DFEH does not satisfy EEOC requirements. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316.) Bristol Farms was entitled to summary judgment on Thomass title VII claim because Thomas did not file a charge and obtain a right-to-sue notice from the EEOC. (Id. at pp. 325-326.)
Second, Thomas contends that false accusations were made against him pertaining to various incidents, so as to raise triable issues with respect to the truthfulness of the accusations against him. The argument is meritless. The question critical to Bristol Farms liability is not whether Thomas in fact committed the misconduct of which he was accused, "but whether at the time the decision to terminate his employment was made, [Bristol Farms], acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing [Thomas] had done so." (Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 109.) Thomass brief does not call into question whether Bristol Farms had a good faith basis for believing that Thomass employment should be terminated.
DISPOSITION
The judgment is affirmed. Bristol Farms shall recover its costs on appeal.
We concur: KITCHING, J., COOPER, P.J.