Opinion
B291603
06-26-2020
JANESTOR SHORT, Plaintiff and Appellant, v. CALIFORNIA INSTITUTE OF TECHNOLOGY, Defendant and Respondent.
Iarusso & Dagher and Michelle Iarusso for Plaintiff and Appellant. DLA Piper, Holly R. Lake and Ryan Matthews Estes for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC656590) APPEAL from a judgment of the Superior Court of Los Angeles County, Samantha P. Jessner, Judge. Affirmed. Iarusso & Dagher and Michelle Iarusso for Plaintiff and Appellant. DLA Piper, Holly R. Lake and Ryan Matthews Estes for Defendant and Respondent.
INTRODUCTION
Appellant Janester Short appeals from a summary judgment granted to her employer, respondent California Institute of Technology (Caltech), on her claims of discrimination and retaliation in violation of public policy and the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. Appellant has long worked in Caltech's Acquisition Division, which includes four "buying" sections: Flight Projects and Programs (Flight); Service and Institutional Support Contracts (Service); Commercial Subcontracts and Strategic Sourcing (Commercial); and Universities. In 2016, the division's managers, Karl Bird and Andre Stefanovich, decided to "rotate" the section managers of the buying sections (i.e., contemporaneously transfer each manager from one section to another), announcing in a memorandum that they did so to broaden skills and knowledge among the section managers. Appellant, who was then 67 years old, was rotated from Flight to Universities, with no change in pay, benefits, hours, title, or management level. The youngest two of the four rotated section managers were both 56 years old, and appellant's replacement as section manager of Flight was 59. Both appellant and her replacement are Black. As appellant concedes on appeal, each of the three other rotated section managers benefited from the rotation in terms of enhanced skills and knowledge. Appellant sued Caltech, alleging that her rotation from Flight to Universities was effectively a demotion, and that she had been rotated because of her age, her race, and/or her protected activity of protesting unrelated discrimination.
At her deposition, appellant testified that her first name is spelled "Janester," not "Janestor" (as it is misspelled in her complaint). Appellant's counsel, who filed the complaint, continues to misspell appellant's name in her appellate brief.
Caltech's amended motion to augment the record is granted with respect to appellant's complaint.
Caltech moved for summary judgment, arguing no reasonable jury could find that appellant's lateral transfer to Universities was an adverse employment action, or that it was motivated by appellant's age, race, or protected activity. Appellant filed no opposition brief. Though she submitted declarations from herself and her counsel, she concedes they were procedurally deficient for failing to state that they were executed in California or under California law. In her declaration, appellant's counsel requested a continuance to obtain unredacted copies of documents and to depose additional witnesses, but she neither explained the nature of the redactions nor identified any of the prospective deponents -- other than one witness, whom she deposed the next day. Appellant's counsel relied on that witness's testimony during the hearing.
To be admissible in summary judgment proceedings despite the general prohibition against admission of hearsay, a declaration must satisfy the requirements of Code of Civil Procedure section 2015.5. (See Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608-618.) The requirements include that the declaration: "(1), if executed within this state, states the . . . place of execution, or (2), if executed at any place, within or without this state, states . . . that it is so certified or declared [to be true under penalty of perjury] under the laws of the State of California." (Code Civ. Proc., § 2015.5.)
The court denied appellant's request to continue the summary judgment hearing, finding appellant had neither satisfied the requirements for a continuance under the summary judgment statute nor established good cause for a discretionary continuance. The court granted Caltech summary judgment on two grounds: (1) there was no triable issue regarding whether the rotation was an adverse employment action; and (2) in any event, Caltech had proffered a nondiscriminatory reason for the rotation, and appellant had failed to raise a triable issue regarding whether that reason was a pretext for a discriminatory or retaliatory motive. Appellant moved for reconsideration, relying on three pieces of purportedly new evidence. The court denied the motion, reasoning, inter alia, that each piece of evidence was not new or not material. Appellant also filed a motion for new trial, relying on the same three pieces of evidence and additionally challenging, on legal grounds, the court's rulings on the continuance and the adverse action element of her prima facie case. The court denied the motion, adhering to its prior conclusions on each point.
On appeal from the judgment, appellant contends: (1) the trial court abused its discretion in failing to consider amended declarations she filed on the morning of the summary judgment hearing, which corrected the original declarations' procedural defects but were otherwise identical to them; (2) the court erred in denying her request to continue the summary judgment hearing; and (3) the court erred in granting Caltech summary judgment. Appellant does not expressly contend that the court erred in denying her motion for reconsideration or her motion for new trial. However, she cites authority regarding each motion, and each is reviewable on this appeal from the judgment entered on the court's summary judgment order. (See Code Civ. Proc., § 1008 [denial of motion for reconsideration is reviewable on appeal from order challenged by the motion]; 8 Witkin, Cal. Procedure (5th ed. 2020) Attack on Judgment in Trial Court, § 137 [denial of new trial motion is reviewable on appeal from judgment].) We therefore consider whether the court erred in denying the motion for reconsideration or the motion for new trial.
Finding no error, we affirm.
FACTUAL BACKGROUND
A. The Rotation
Caltech is a university that, inter alia, manages Jet Propulsion Laboratory (JPL) for the National Aeronautics and Space Administration. Managed by Division Manager Karl Bird and Deputy Division Manager Andre Stefanovich, Caltech's Acquisition Division negotiates and contracts with third parties for the purchase of products and services. The division is organized into "buying" sections, which issue subcontracts for products and services, and "non-buying" sections, which support the buying sections. There are four buying sections, each managed by a section manager: (1) Flight; (2) Service; (3) Commercial; and (4) Universities.
Appellant has been employed by Caltech in the Acquisition Division since 1990, when she was hired as a senior contract negotiator. In 2001, appellant was promoted to a supervisory position. In 2004, on the recommendation of Stefanovich and others, appellant was promoted to section manager of Service. In 2007, again on Stefanovich's recommendation (with which Bird agreed), appellant was transferred to section manager of Flight. Flight handles all contracts related to the purchase of hardware for JPL's space programs and projects, such as the Europa Project (exploration of Jupiter's moon) and Mars 2020 (Mars exploration system).
In fall 2016, after consulting with human resources employee Cheryl Ortenburger, Bird and Stefanovich decided to rotate all four buying groups' section managers. On November 30, 2016, Bird and Stefanovich met with appellant and gave her a memorandum stating the rotation decision was made "[t]o enhance and broaden the skills, knowledge and experience among" the managers of the buying sections. They informed her she would be rotated from Flight to Universities because, though she had some line-level experience negotiating university-related contracts, she had never managed Universities. Universities handles nearly all of JPL's contracts with various universities, including contracts for research forming the basis for JPL projects.
Effective December 5, 2016, appellant (then 67 years old) rotated from Flight to Universities. She replaced 56-year-old Delia Borlund. Borlund rotated from Universities to Commercial, replacing 56-year-old Debbie Lee. Lee, in turn, rotated from Commercial to Service, replacing 59-year-old Dale Wright. Finally, Wright replaced appellant as section manager of Flight. Wright and appellant are both Black.
The rotation did not change appellant's title, which remained section manager. It did not change her pay or benefits. It did not change her hours. It did not change her status as a Level 3 Manager. It did not change her place in the Acquisition Division hierarchy; she still supervised Group Supervisors and reported to Bird and Stefanovich.
Upon her rotation into Universities, appellant determined that the section was in "'bad shape'" and had approximately 400 unclosed contracts, which could create liability for Caltech. She made closing contracts her primary goal in the section. Bird declared, and appellant agreed, that as a result of this focus on closing contracts, the Universities Section improved under appellant's management.
B. Caltech's Motion for Summary Judgment
1. Appellant's Complaint and Caltech's Motion
On April 5, 2017, appellant filed a complaint against Caltech challenging the rotation, which she alleged was effectively a demotion. She further alleged that, before the rotation, she had protested unequal pay for Black hires and the rejection of Black candidates. Appellant brought five causes of action: (1) discrimination in violation of FEHA; (2) discrimination in violation of public policy; (3) retaliation in violation of FEHA; (4) retaliation in violation of public policy; and (5) failure to prevent discrimination and retaliation in violation of FEHA. Though appellant's FEHA discrimination claim was styled as a claim of race discrimination, the allegations supporting it referenced age instead of race. Appellant was represented by attorney Michelle Iarusso, who remained her counsel throughout all proceedings in the trial court and this court.
In its motion for summary judgment, Caltech liberally read appellant's complaint as pleading claims of both race and age discrimination. Appellant made no attempt to identify evidence of race discrimination in the summary judgment proceedings or on appeal.
Eight months after appellant filed suit (on December 7, 2017), Caltech filed a motion for summary judgment. It argued that the rotation was insufficiently adverse to support appellant's prima facie case, and that, in any event, appellant could not show Caltech's proffered reason for the rotation (i.e., broadening skills and knowledge among the section managers) was a pretext for a discriminatory or retaliatory motive. Caltech submitted declarations from Bird and Stefanovich, who each declared that neither age nor race played any role in the rotation decision.
2. Appellant's Opposition Filings
After Caltech moved for summary judgment, appellant deposed several witnesses, including Stefanovich and Martin Johnson, the section manager of a non-buying section. Appellant filed no opposition to the summary judgment motion, instead submitting declarations from herself and attorney Iarusso, along with a separate statement. The declarations failed to state that they were executed in California or under California law. Iarusso's declaration additionally failed to state that it was executed under penalty of perjury.
Appellant declared that she had never been subject to a rotation before her 2016 rotation from Flight to Universities. She asserted that Flight is considered the Acquisition Division's premier section, and described purported differences between Flight and Universities in terms of, inter alia, the experience level of the staff she managed. She claimed that she had gained no skills from the rotation, and that, on the contrary, her skills had diminished as a result of it.
Appellant further declared that nearly three months before Bird and Stefanovich informed her of the rotation decision (on September 9, 2016), she received an email from Johnson (the manager of a non-buying section) with an attachment listing employees who were at least 60 years old, including herself but no other section manager. She asserted that she had learned, from an unidentified source, that Johnson created the list at Bird and Stefanovich's request for use in succession planning. Neither the list itself nor the email transmitting it were attached to the declaration.
Appellant submitted no deposition testimony from Johnson or any other witness she had deposed, other than brief excerpts from Stefanovich's deposition (which did not address the list circulated by Johnson). Stefanovich testified that rotations prior to the one at issue had taken place for various reasons: "Some would be as a result of vacancies, others would just be a movement based on reorganization of the organization or a decision by management to switch things around." He identified the 1990s as his "best estimate as to when a rotation occurred that was not spurred by a vacancy," but also acknowledged that he lacked "first[-hand] knowledge of . . . the ins and outs" of all prior rotations.
In her declaration, Iarusso, appellant's counsel, requested a continuance to complete further discovery. She declared that Caltech had refused to produce unredacted copies of unspecified documents "relating to succession planning and Karl Bird and Andre Stefanovich's tracking of employees by age." With respect to outstanding depositions, she stated only the following: "Defendant has refused to produce more than 10 witnesses for deposition in time for me to use their depositions to oppose this motion. I currently have 6 motions to compel depositions filed and on calendar. I have yet to depose Karl Bird, who [was] one of the decision-makers regarding [appellant's] involuntary rotation and who provided a declaration in support of Defendant's motion."
The same day appellant filed her declarations and separate statement, Iarusso received a declaration from former Caltech employee Kathleen O'Hara. The next day (February 7, 2018), Iarusso deposed Bird. Appellant filed neither the O'Hara declaration nor any excerpts from Bird's deposition testimony prior to the hearing on Caltech's motion for summary judgment.
3. Caltech's Reply
Caltech filed objections to appellant's and Iarusso's declarations in their entirety, on the ground of noncompliance with Code of Civil Procedure section 2015.5. It separately objected, on various grounds, to many portions of their declarations.
In its reply separate statement, Caltech did not dispute that in September 2016, Johnson circulated an email listing individuals within the Acquisition Division who were at least 60 years old. Indeed, its motion brief had anticipated appellant's reliance on the list, and had been accompanied by appellant's deposition testimony regarding the list. In that testimony, appellant admitted she did not know: (1) why Johnson circulated the list; (2) why the age data in the list was compiled; (3) who instructed Johnson to compile it; (4) who else received the list; or (5) whether Bird and Stefanovich -- themselves both over 60 and included on the list -- were tracking employee ages. Appellant further admitted that she had never heard any Caltech employee make any comment reflecting bias against individuals of a certain age.
In its reply brief, Caltech again argued that the rotation was not an adverse action and that, in any event, appellant had failed to identify admissible evidence raising a triable issue regarding whether the rotation had a discriminatory or retaliatory motive. Caltech additionally argued that the court should grant its motion due to appellant's failure to file an opposition or any declaration compliant with Code of Civil Procedure section 2015.5. Finally, Caltech argued that even if the court disregarded the procedural defects in Iarusso's declaration, the declaration failed to make a sufficient showing to warrant a continuance.
4. Hearing and Ruling
On the morning of the summary judgment hearing (February 20, 2018), appellant filed amended declarations, dated the same day, from herself and attorney Iarusso. The amended declarations, unlike the originals, stated that they were executed in California; additionally, Iarusso's amended declaration, unlike the original, stated that it was executed under penalty of perjury (as appellant's original declaration had already stated, without stating that it was executed under California law). Otherwise, each amended declaration was identical to the original. Indeed, Iarusso repeated her original assertion that she had not yet deposed Bird, even though she had deposed him approximately two weeks earlier.
At the outset of the summary judgment hearing, the trial court delivered a tentative ruling in Caltech's favor. With respect to appellant's request for a continuance, the court observed that Iarusso's declaration provided no information regarding what the outstanding discovery would reveal. Iarusso argued that her inability to depose Bird before her opposition was due established good cause for a continuance (neglecting to mention that she had deposed Bird nearly two weeks before the hearing). The court noted her declaration failed to explain why she had not deposed Bird earlier. Without providing an explanation, Iarusso confirmed, in response to the court's inquiry, that the case had been pending for quite some time.
Caltech's counsel argued appellant had raised no triable issues regarding whether the rotation was an adverse employment action or had a prohibited motive. In rebuttal, Iarusso -- acknowledging she had deposed Bird the day after the opposition deadline, and offering to read the deposition transcript to the court -- represented that Bird's testimony supported her position that appellant's rotation from Flight to Universities was a demotion from Level 3 manager status to Level 2. Caltech's counsel, in contrast, represented that Bird had testified only that the position of section manager of Universities was open to managers of Level 2 or above. Caltech's counsel accurately noted that appellant had conceded, in her deposition, that she remained a Level 3 manager after her rotation to Universities. The court deemed Iarusso's argument a mischaracterization of the evidence.
In fact, appellant had likewise conceded in her separate statement that she remained a Level 3 manager after her rotation to Universities. She concedes the same on appeal.
After taking the matter under submission, the court adopted its tentative ruling granting Caltech summary judgment. The court sustained many objections to appellant's and Iarusso's declarations, including, inter alia, (1) a foundation objection to appellant's assertion that Bird and Stefanovich requested that Johnson create the list of employees at least 60 years old for use in succession planning; and (2) objections, on various grounds, to appellant's assertions that her skills had diminished as a result of the rotation and that she had gained no new skills. The court denied appellant's request for a continuance on the ground that Iarusso's declaration provided no basis to conclude that the evidence sought was essential to opposing the motion.
On the merits, the court concluded that appellant had failed to raise a triable issue regarding whether her rotation was an adverse employment action. Alternatively, the court concluded that appellant had failed to raise a triable issue, in the face of Caltech's proffered nondiscriminatory reason for the rotation, regarding whether the rotation had a discriminatory or retaliatory motive. Because each ground was fatal to appellant's FEHA claims of discrimination and retaliation, and her other claims were derivative of those claims, the court granted Caltech summary judgment. Appellant appealed the judgment.
C. Appellant's Motion for Reconsideration
On March 22, 2018, before filing her notice of appeal, appellant filed a motion for reconsideration under Code of Civil Procedure section 1008. Along with a declaration that again failed to comply with Code of Civil Procedure section 2015.5, Iarusso submitted, for the first time: (1) excerpts from Johnson's deposition, which she had taken weeks before the due date for the summary judgment opposition; (2) the declaration from O'Hara, which she had received on the date her opposition was due; and (3) excerpts from Bird's deposition, which she had taken the day after the due date. Appellant argued that Bird's testimony and O'Hara's declaration constituted new evidence, and that Bird's testimony made Johnson's deposition relevant. She did not articulate how any of this evidence might affect the court's reasoning for its summary judgment ruling -- indeed, she did not address the court's reasoning at all.
It appears appellant failed to serve her motion for reconsideration on Caltech. Caltech nevertheless opposed the motion on its merits, and the trial court ruled that it thereby waived any service defect.
On April 6, 2018, Caltech filed an ex parte application for a protective order to prohibit appellant from deposing former Caltech employee Kimberly Jones, on the grounds that judgment had already been entered and appellant had never served Caltech with a notice of Jones's deposition. Jones reportedly had informed Caltech's counsel that she had been served with a subpoena to appear for a deposition that day in a lawsuit regarding appellant. When contacted by Caltech's counsel, Iarusso reportedly had denied issuing any such subpoena or intending to depose Jones that day. Iarusso's partner appeared at the ex parte hearing and submitted a "declaration of non-opposition" from Iarusso, which stated only, "My office has not issued any subpoenas in connection with the above titled matter [i.e., this action]. I informed defendants of this both over the phone and via email prior to the bringing of this motion." The court ruled that Iarusso's declaration of non-opposition rendered the application for a protective order moot.
The same day, Iarusso "specially" appeared in a workers' compensation action brought by appellant -- in which appellant was represented by a different firm -- and deposed Jones. Caltech was not represented by counsel at the deposition. Four days later, Iarusso filed a supplemental declaration in this action (again noncompliant with Code of Civil Procedure section 2015.5), explaining that she had deposed Jones in the separate action and submitting excerpts from Jones's testimony. In the submitted excerpts, Jones claimed that Caltech managers identified retirement-eligible employees during quarterly reviews, and accused Caltech human resources employees of making employment decisions "specifically in HR" on the basis of age. However, Jones admitted that she knew nothing about the 2016 rotation, that she was not involved in any employment decision affecting appellant, and that she did not know Johnson, who circulated the list of employees who were at least 60 years old.
After receiving Caltech's opposition filings and appellant's reply, the court held a hearing on the motion for reconsideration. It delivered no tentative ruling, and counsel for neither party argued. Before the court took the matter under submission, Iarusso merely apologized to the court for "the issues with [her] pleadings."
In an order that devoted a section to "Plaintiff's History of Procedural Errors," the court denied the motion. It sustained many evidentiary objections to appellant's evidence, including a hearsay objection to the entirety of the Jones deposition. On the merits, the court concluded that neither the Johnson deposition, the O'Hara declaration, nor the Bird deposition constituted new evidence. It further concluded that even if the Jones deposition were admissible (contrary to the court's ruling), her testimony did not warrant reconsideration. Though it did not explain its reasoning on that point, it later observed, in its order denying appellant's new trial motion, that Jones "did not competently testify to any conduct by those involved in the decision to rotate Plaintiff."
D. Appellant's Motion for New Trial
Appellant moved for a new trial under Code of Civil Procedure section 657, relying on three of the statute's enumerated grounds: (1) newly discovered evidence; (2) denial of a fair trial via an order of the court or an irregularity in the proceedings; and (3) error of law. Appellant again relied on the depositions of Bird and Jones and the declaration from O'Hara. She additionally argued that the court denied her a fair trial by denying her request for a continuance, and that the court applied the wrong legal standard to assess whether the rotation was an adverse employment action.
After receiving Caltech's opposition (to which appellant did not reply), the court held a hearing on the motion for new trial. At the outset, it announced a tentative decision to deny the motion on the ground that appellant had merely repeated arguments the court had already rejected. Iarusso argued appellant should be allowed to depose Jones again (this time within this action), and to depose six other witnesses. The court took the matter under submission, and later denied the motion, rejecting appellant's reliance on the O'Hara declaration and the Bird and Jones depositions on the same grounds on which it had relied in denying appellant's motion for reconsideration. It adhered to its prior conclusions regarding appellant's requested continuance and the adverse action element, noting additionally that any error in its analysis of the adverse action element was harmless because "the court granted Defendant's motion on a second ground, namely Plaintiff's failure to rebut the legitimate non-discriminatory reason offered by Defendant."
DISCUSSION
Appellant contends the trial court erred in: (1) failing to consider the amended declarations she filed on the morning of the summary judgment hearing; (2) denying her request to continue the hearing; and (3) granting Caltech summary judgment. We also consider whether the court erred in denying appellant's post-judgment motions for reconsideration and for a new trial.
A. Amended Declarations
We need not address whether the court erred in failing to consider appellant's and Iarusso's amended declarations, submitted on the morning of the summary judgment hearing, as the purported error could not have been prejudicial. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801 [trial court error warrants reversal only where it results in miscarriage of justice, requiring reasonable possibility that appellant would have obtained more favorable result in error's absence].) The court considered the original declarations substantively, ruling on evidentiary objections to their contents and explaining that they neither warranted a continuance nor raised any triable issue on the merits. The court undoubtedly would have reached the same conclusions had it considered the amended, substantively identical declarations. Appellant does not contend otherwise.
B. Continuance
The trial court did not err in denying appellant's request to continue the summary judgment hearing. "In seeking a continuance of a summary judgment motion, a plaintiff has essentially two options. The first option is to comply with [Code of Civil Procedure] section 437c, subdivision (h), which states, 'If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.'" (Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 764-765 (Hamilton), italics added.) "To qualify as an alternative to an affidavit, a declaration . . . must reflect the . . . place of execution, if signed in California, or recite that it is executed 'under the laws of the State of California.'" (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 941 (Sweetwater), quoting Code Civ. Proc., § 2015.5.) A request for a continuance under the statute must be made on or before the opposition deadline. (Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 315 (Levingston).)
"Where a plaintiff cannot make the showing required under [Code of Civil Procedure] section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance. [Citation.] This requires a showing of good cause. [Citation.] '[I]n deciding whether to continue a summary judgment to permit additional discovery courts consider various factors, including . . . the question whether the evidence sought is truly essential to the motion.' [Citation.]" (Hamilton, supra, 8 Cal.App.5th at 765.) "'Reviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing.'" (Levingston, supra, 26 Cal.App.5th at 315.)
Appellant failed to satisfy the requirements of Code of Civil Procedure section 437c, subdivision (h), for two reasons. First, she failed to timely submit an affidavit or its authorized substitute, viz., a declaration compliant with Code of Civil Procedure section 2015.5. The original declaration from attorney Iarusso, though timely, was noncompliant with Code of Civil Procedure section 2015.5 (as appellant concedes) because it failed to state that it was executed in California or under California law. (See Sweetwater, supra, 6 Cal.5th at 942 ["'[C]ourts have made clear that a declaration is defective under [Code of Civil Procedure] section 2015.5 absent an express facial link to California or its perjury laws'"].) Though Iarusso's amended declaration corrected that defect, it was untimely filed on the morning of the hearing, well after the opposition deadline. (See Levingston, supra, 26 Cal.App.5th at 315 [trial court could properly deny continuance under Code Civ. Proc., § 437c, subd. (h), where no continuance request was submitted on or before opposition deadline].)
Second, even disregarding Iarusso's procedural errors, her declarations failed to make the required showing of the potential discovery of additional facts essential to justify opposition. As the court observed at the hearing, Iarusso's declarations did not state what the outstanding documents might reveal. Indeed, her declarations indicated that appellant was already in possession of redacted copies of those documents, without hinting at the nature of the redactions. Similarly, Iarusso's declarations failed to identify nearly all of the prospective deponents, leaving the court to speculate whether their depositions might yield material evidence. Iarusso identified only one deponent: Bird, whom she deposed well before the hearing. Indeed, she relied on his deposition transcript during the hearing. The court was not compelled to continue the hearing to give appellant a chance to make better use of testimony on which she had already relied.
Further, Iarusso declared that six of the prospective depositions were subject to pending motions to compel, without clarifying the nature of the objections that had necessitated the motions. The court could only speculate whether appellant had any likelihood of overcoming Caltech's objections.
Similarly, because Iarusso's barebones representations in her declarations and at the hearing failed to establish a non-speculative possibility that the continuance would yield evidence essential to the opposition, appellant failed to make a sufficient showing of good cause to render the court's denial of a continuance an abuse of discretion. (See Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 642, 656-657 [defendant failed to establish good cause for continuing hearing on plaintiff's motion for summary judgment, notwithstanding defendant's then-pending motion to compel deposition of one of plaintiff's declarants, where declarations failed to explain what additional information could be obtained from prospective deponent or how that information was essential].)
The cases on which appellant relies are distinguishable. (See Hamilton, supra, 8 Cal.App.5th at 765-766 [trial court abused its discretion in denying continuance, where all prospective deponents were "obviously" essential, defendant stipulated to continuance in apparent concession of fault for appellant's failure to complete outstanding discovery, court identified no reason for refusing to accept stipulation other than plaintiff's non-optimal diligence, and court had treated defendant's prior continuance request more favorably than plaintiff's]; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643-644 [same, where plaintiff's briefing made clear that prospective deponent likely had unique knowledge regarding primary dispute; plainly essential nature of that witness's testimony was most important factor favoring continuance]; Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 396-400 [trial court erred in denying continuance, where plaintiff submitted affidavits meeting statutory requirements; moreover, trial court improperly relied on plaintiff's perceived lack of diligence and on unfounded fear that continuance would permit plaintiff to forum shop].)
In sum, the trial court did not err in denying appellant's request to continue the summary judgment hearing because appellant neither satisfied the requirements of Code of Civil Procedure section 437c, subdivision (h), nor made a showing of good cause sufficient to render the denial an abuse of discretion.
C. Summary Judgment
In deciding whether the trial court erred in granting Caltech summary judgment, the dispositive issue is whether it erred by summarily adjudicating appellant's FEHA claims of discrimination and retaliation; appellant concedes her other claims were derivative of those claims. Appellant has forfeited any contention that the court erred in summarily adjudicating her FEHA claims of race discrimination and retaliation, as she develops no argument regarding a racial or retaliatory motive for the rotation. (See, e.g., In re Phoenix H. (2009) 47 Cal.4th 835, 845 ["'"Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned"'"].) Thus, we need decide only whether the court erred in summarily adjudicating appellant's FEHA claim of age discrimination.
1. Principles
FEHA prohibits an employer from discriminating against any person in terms, conditions, or privileges of employment because of the person's age, if 40 or older. (Gov. Code, §§ 12926, subd. (b), 12940, subd. (a).) To establish an employer's liability for discrimination, a plaintiff must show her protected characteristic was a substantial motivating factor in the challenged employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231-232; Cal. Code Regs., tit. 2, § 11009, subd. (c).) "In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 . . . ." (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.) The three stages of this burden-shifting approach are: (1) the plaintiff's burden to establish a prima facie case by providing evidence that (a) she had a protected characteristic; (b) she was qualified for her position or performed competently in it; (c) she suffered an adverse employment action; and (d) her protected characteristic motivated the action; (2) the employer's burden to proffer a nondiscriminatory reason for the action; and (3) the plaintiff's burden to show that the employer's proffered reasons are pretexts for discrimination or to produce other evidence of a discriminatory motive. (See ibid.)
"[A] job reassignment may be an adverse employment action when it entails materially adverse consequences." (Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, 1279, citing McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393 (McRae).) Such consequences may include a materially adverse impact on the employee's opportunity for career advancement. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389 (Patten).) However, "[a] transfer is not an adverse employment action when it is into a comparable position that does not result in substantial and tangible harm[,] . . . [even if] the plaintiff finds it to be 'personally humiliating.'" (McRae, supra, at 393.)
We review a grant of summary judgment de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) "A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law." (Id. at 1002-1003, citing Code Civ. Proc., § 437c, subd. (c).) Evidence that raises only a weak suspicion of discrimination is insufficient to defeat summary judgment. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 868; Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 369-370 (Guz).)
2. Adverse Employment Action
It is doubtful whether a reasonable jury could find appellant suffered an adverse employment action when she was rotated from Flight to Universities with no change in pay, benefits, hours, title, or management level. Though appellant asserted differences between Flight and Universities, she identified no evidence that as a result of those differences (or any other reason), managing Universities after managing Flight would materially diminish her opportunity for career advancement. (See McRae, supra, 142 Cal.App.4th at 383, 393 [evidence did not support jury finding that plaintiff was subject to actionable retaliation, notwithstanding plaintiff's transfer to new workplace that she personally believed to have poor reputation, where transfer did not change plaintiff's pay, benefits, hours, title, or responsibilities, and plaintiff failed to produce evidence that her new workplace in fact had poor reputation]; Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 358 [trial court properly found no triable issue regarding whether plaintiff's transfer from platoon duty to special duty was adverse employment action, notwithstanding plaintiff's preference for work, schedule, and camaraderie in platoon duty, where plaintiff failed to identify evidence of diminished opportunities for promotion or other adverse impact].)
In the absence of such evidence, it was equally or more likely that gaining experience managing an additional workforce -- particularly one that she determined to be in "'bad shape'" -- would enhance her opportunity for advancement by enabling her to prove the versatility and value of her managerial skills. (Cf. Patten, supra, 134 Cal.App.4th at 1389 [principal raised triable issue regarding whether she suffered adverse employment action when transferred from underperforming school to school with high-achieving student body and high-level parental support, as underperforming school provided greater opportunity for principal to "make her mark"].) Indeed, it is undisputed that Universities has improved under appellant's management as a result of her focus on closing the section's backlogged contracts.
In any event, we need not resolve appellant's argument that the trial court erred in finding no triable issue on this element of her prima facie case. As the court itself noted in denying appellant's motion for new trial, any error in its analysis of the adverse action element was harmless because the court granted Caltech summary judgment on an alternative ground: appellant's failure to rebut Caltech's proffered nondiscriminatory reason.
3. Pretext
Appellant does not dispute that Caltech adequately proffered a nondiscriminatory reason for the rotation, viz., to enhance skills and knowledge among the four buying section managers. Appellant failed to raise a triable issue regarding whether Caltech's proffered reason was pretextual. The rotation evidently achieved its proffered purpose -- appellant concedes on appeal that each of the other three rotated section managers "move[d] to a position that increased [his or] her skills and knowledge base." Nevertheless, appellant contends a reasonable jury could find the proffered purpose pretextual on the ground that it did not enhance appellant's skills. We disagree. Though appellant declared that her skills had diminished as a result of the rotation and that she had gained no new skills, the trial court sustained objections (on various grounds) to the relevant portions of appellant's declaration, and appellant has not challenged those evidentiary rulings on appeal. Moreover, even assuming a reasonable jury could find that appellant did not benefit from the rotation in terms of enhanced skills, that finding would not contradict Caltech's proffered reason for the rotation, viz., to enhance skills "among" the four buying section managers. Appellant's rotation out of Flight enabled another manager's rotation into that section, serving the rotation's proffered purpose by enhancing that manager's skills and knowledge.
We reject appellant's argument that a reasonable jury could find Caltech's proffered reason pretextual on the ground that it was "anomalous" for Caltech to rotate employees for any purpose other than responding to a vacancy or restructuring. Stefanovich implied that prior rotations had, in fact, occurred for another purpose, testifying, "Some [prior rotations] would be as a result of vacancies, others would just be a movement based on reorganization of the organization or a decision by management to switch things around." (Italics added.) More important, even assuming arguendo that no prior rotation had been done for the purpose of broadening the rotated employees' skills, that fact alone would not support a reasonable inference that Caltech was lying when it proffered that purpose for the 2016 rotation. As our Supreme Court observed when defending the soundness of its unprecedented holding on a novel claim, "there is a first time for everything . . . ." (Beeman v. Anthem Prescription Management, LLC (2013) 58 Cal.4th 329, 356.) Indeed, even evidence that an employer violated its own policies in taking the challenged employment action -- a more suspicious anomaly than mere novelty -- does not, standing alone, reasonably support an inference of discrimination. (See Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 359-360 [evidence that police department violated its own policies in denying off-duty work permits to Hispanic officers did not support reasonable inference of race discrimination]; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1159 [evidence that university professor and dean violated university procedures in evaluating Jewish plaintiff for tenure did not support reasonable inference of religious discrimination].)
Though Stefanovich identified the 1990s as his "best estimate as to when a rotation occurred that was not spurred by a vacancy," he also testified that he lacked personal knowledge of the details of all prior rotations. --------
In sum, no reasonable jury could find Caltech's proffered reason to be a pretext for an age-based motive, in the absence of substantial independent evidence of such a motive. As explained below, appellant provided none.
4. Age-Based Motive
The trial court did not err in finding appellant had failed to raise a triable issue regarding whether the rotation was substantially motivated by her age. Appellant argues that an inference of age discrimination arises because she, the oldest of the four rotated section managers, was the only one who derived no benefit from the rotation in terms of enhanced skills. However, appellant's status as the oldest employee in the group means little, given the group's size and composition. The group comprised only four people. (See Guz, supra, 24 Cal.4th at 367 ["where alleged numerical favoritism of younger workers arose within an extremely small employee pool, courts have rejected any consequent inference of intentional bias on grounds, among others, that the sample was too minuscule to demonstrate a statistically reliable discriminatory pattern"].) Each of the three other section managers was well over 40 years old -- two were 56, and one was 59. In fact, each was closer to appellant's age (67) than to 40. Appellant's replacement as section manager of Flight was only eight years younger than her. (See id. at 366 ["Where an age-protected worker is directly replaced by a person not significantly younger, there may be no basis to suspect a motive of prohibited bias"]; cf. France v. Johnson (9th Cir. 2015) 795 F.3d 1170, 1174 (France) [eight-year average age difference between plaintiff and younger employees favored for promotion would have been insufficient even to support prima facie case under federal Age Discrimination in Employment Act, had age difference not been bolstered by other evidence].) Thus, the age difference between appellant and the other rotated section managers does not support a reasonable inference of age discrimination, in the absence of evidence raising a triable issue regarding whether the decision makers personally viewed the difference as significant. (See Guz, at 369 [employer's alleged disparate treatment of plaintiff and two younger workers, one eight years younger and the other six years younger, did not support reasonable inference of age discrimination, in absence of independent indication decision maker considered their age differences significant].)
Appellant identified no such evidence. She admitted she had never heard any decision maker (or anyone else at Caltech) make any comment reflecting bias against individuals of a certain age. On appeal, she relies on Johnson's circulation, nearly three months before the rotation, of a list of employees who were at least 60 years old (the "60+ list"). However, she identifies no admissible evidence that the 60+ list had any relation to the rotation decision. Though appellant declared that she had learned, from an unspecified source, that Johnson created the 60+ list at the request of Bird and Stefanovich for the purpose of succession planning, the court sustained a foundation objection to that portion of her declaration, and she does not challenge that evidentiary ruling on appeal. Moreover, appellant admitted she did not know: (1) why Johnson circulated the list; (2) why the age data in the list was compiled; (3) who instructed Johnson to compile it; (4) who else received the list; or (5) whether Bird and Stefanovich -- themselves over 60 years old and included on the list -- were tracking employee ages. Appellant identified no evidence answering these questions, despite having deposed Johnson, Stefanovich, and Bird. Thus, appellant failed to support a reasonable inference that Bird and Stefavonich decided to replace the 67-year-old appellant with the 59-year-old Wright (just shy of 60 himself) because of appellant's age.
The cases on which appellant relies do not assist her. The court in Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997 affirmed summary judgment in favor of an employer on an age discrimination claim for the same reason we do so here: the plaintiff failed to raise a triable issue regarding whether the employer's proffered nondiscriminatory reasons were pretexts for age discrimination. (Id. at 1009.) Though the Ninth Circuit in France reversed a grant of summary judgment to an employer on an age discrimination claim, the plaintiff there produced evidence that two decision makers had exhibited or expressed preference for younger employees, and that one had pressured the plaintiff to retire even after the plaintiff had expressed an intent to seek a promotion instead. (See France, supra, 795 F.3d at 1172, 1174-1177.) Here, appellant failed to produce any comparable evidence.
In sum, the trial court did not err in granting Caltech summary judgment. Even viewed in the light most favorable to appellant, the admissible evidence did not support a reasonable inference that Bird and Stefanovich decided to rotate appellant out of Flight because of her age. It did, on the other hand, support a reasonable inference that the rotation achieved its proffered purpose of broadening skills and knowledge among the rotated section managers. The trial court properly concluded that no reasonable jury could find Caltech's proffered reason to be a pretext for age discrimination, or otherwise find that appellant's rotation was substantially motivated by her age.
D. Post-judgment Motions
The court did not err in denying appellant's motion for reconsideration or in denying her motion for new trial (as noted, appellant makes no express contention of error in either ruling). In support of each motion, appellant primarily relied on three pieces of purportedly new evidence: (1) Bird's deposition; (2) a declaration from former Caltech employee Kathleen O'Hara; and (3) the deposition, in appellant's workers' compensation action, of former Caltech employee Kimberly Jones. However, neither O'Hara's declaration (received by appellant's counsel on the date her opposition was due) nor Bird's deposition (taken the day after and relied upon during the hearing) was new within the meaning of the governing statutes. (See, e.g., Younger & Bradley, Younger on Cal. Motions (2d ed. 2019) § 27:30 ["Plainly, a motion [for reconsideration] cannot be properly based on a claim that something is 'new,' when the newness is caused by having left it out earlier"]; Wegner et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2019) ¶ 18:153.1 [only evidence that "was not known and could not reasonably have been known at the time of trial" qualifies as newly discovered evidence for purposes of motion for new trial]; id. at ¶ 18:157 ["A party who fails to offer certain evidence at trial because unaware of its relevance cannot later, upon realizing its significance, claim it is 'newly discovered'"].) Though Jones's deposition was taken after the hearing, Jones admitted that she knew nothing about the 2016 rotation, that she was not involved in any employment decision affecting appellant, and that she did not know Johnson, who circulated the 60+ list. Thus, Jones's testimony was insufficiently material to warrant reconsideration or a new trial. (See, e.g., Younger & Bradley, Younger on Cal. Motions, supra, § 27:31 ["The law clearly does not require the judge to grant reconsideration simply because new facts or circumstances exist. They have to be shown to militate in favor of a different result on the underlying motion"]; Wegner et al., Cal. Practice Guide: Civil Trials & Evidence, supra, ¶ 18:153.2 [for purposes of motion for new trial, newly discovered evidence "must be material -- i.e., it must be of a type likely to bring about a different result"].)
In support of her new trial motion, appellant additionally contended that the trial court deprived her of a fair trial by denying her request for a continuance, and that the court applied the wrong legal standard to the adverse action element of her prima facie case. As explained above, the court did not err in denying the request for a continuance. Further, as the court itself ruled, any error in its analysis of the adverse action element could not have been prejudicial, as the court had granted the motion on an alternative ground, viz., appellant's failure to rebut Caltech's proffered nondiscriminatory reason for the rotation. The court therefore properly denied the motion. (See, e.g., Wegner et al., Cal. Practice Guide: Civil Trials & Evidence, supra, ¶ 18:192 ["A new trial cannot be granted for error of law unless the error was prejudicial (see Cal. Const. Art. VI, § 13). I.e., the error must likely have affected the outcome of the trial"].)
DISPOSITION
The judgment is affirmed. Caltech is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.