Doe v. Softwareone, Inc.

85 Cal.App.5th 98

301 Cal.Rptr.3d 45

Jane DOE, Plaintiff and Respondent,

v.SOFTWAREONE, INC., Defendant and Appellant.

G060554

Court of Appeal, Fourth District, Division 3, California.

Filed October 12, 2022

Jackson Lewis, Elizabeth A. Murphy, Reem Blaik, Jennifer S. Gutenberg, and Dylan B. Carp, San Francisco, for Defendants and Appellants.

Trujillo & Winnick, Anthony W. Trujillo and Alexander H. Winnick, Santa Monica, for Plaintiff and Respondent.

OPINION

SANCHEZ, J.

FACTS AND PROCEDURAL HISTORY

Plaintiff Jane Doe was the founder and owner of a company called House of Lync, which was purchased by defendant SoftwareONE Inc. As part of the acquisition, plaintiff was offered a position with defendant as "Head Solutions Sales, Skype for Business," which she accepted. At the time, plaintiff was 49 years old.

Nine months later, defendant hosted a "National Sales Kick-off" event in Cancun, Mexico. Plaintiff attended, and felt the event was "full of outlandish behavior." For example, plaintiff testified "the CEO Patrick Winter expected the women to join him on stage to dance, and he poured champagne down their throats." Plaintiff refused to participate, and later complained to the president of defendant's American division.

Beginning shortly after the event, defendant received complaints about plaintiff, including her "demeaning manner, withholding of important information, bullying, humiliation, and other unacceptable behaviors." Defendant reassigned plaintiff to a new position: "Global Alliances and Practice Development Leader, Skype for Business." Frustration about plaintiff within defendant's leadership team continued after the reassignment. About six months after plaintiff's reassignment, Jason Cochran, defendant's director of technical solutions told plaintiff, during an after-work event, that defendant "is a guy's club," plaintiff was "never going to make it" working for defendant, and called plaintiff a "bitch." After plaintiff complained, defendant's human resources manager investigated, "coached" Cochran, and informed plaintiff that defendant did not condone this behavior.

A few months later, defendant purchased another company similar to plaintiff's. Defendant then terminated plaintiff, citing poor performance and redundancy. Plaintiff sued defendant, alleging her firing was discriminatory and retaliatory.

Defendant moved for summary judgment. Defendant argued (1) plaintiff could not establish a prima facie case for discrimination or retaliation, (2) defendant had legitimate, nondiscriminatory reasons for terminating plaintiff, and (3) plaintiff could not show defendant's nondiscriminatory reasons were pretextual. The trial court granted defendant's motion and entered judgment for defendant.

Plaintiff moved for a new trial. Plaintiff argued, among other things, that the trial court had failed to apply Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 221 Cal.Rptr.3d 668 ( Light ), where the Court of Appeal held, "The showing of pretext, while it may indicate retaliatory intent or animus, is not the sole means of rebutting the employer's evidence of nonretaliatory intent." ( Id. at p. 94, 221 Cal.Rptr.3d 668.) Plaintiff contended that, even absent evidence of pretext, her claims could survive (and should have survived) summary judgment because she made a sufficient showing of retaliatory intent.

The trial court agreed and granted plaintiff's motion. The trial court found "there was no substantial evidence to establish pretext," but that the evidence, "taken as a whole, could support a reasoned inference of discriminatory or retaliatory animus." The trial court included in its ruling a nonexclusive list of items of evidence supporting animus: "evidence that plaintiff was replaced by younger males, both when she was demoted and terminated [citation], evidence that plaintiff had been performing well at the company [citation], comments by [Cochran] that the company ‘is a guy's club’ so she was ‘never going to make it’ and by another executive that she was a ‘bitch’ [citation], and the arguable temporal connection between her demotion and her asserted complaints about a discriminatory culture."¹ With respect specifically to the three quoted statements, the trial court overruled defendant's hearsay objection. Defendant timely appealed.

DISCUSSION

Defendant argues the trial court erred by granting plaintiff's motion for a new trial. Specifically, defendant contends plaintiff did not produce evidence that, per Light , could " ‘ "support[ ] a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus." ’ " ( Light, supra , 14 Cal.App.5th at p. 94, 221 Cal.Rptr.3d 668.) Defendant's argument rests on five principal contentions: (1) the "same-actor" inference applies, which increases the burden on plaintiff; (2) there is no substantial evidence plaintiff was replaced by younger males; (3) plaintiff's evidence showed she did not meet her performance goals; (4) Cochran's comments are inadmissible hearsay and not probative of defendant's motives; and (5) defendant's employees' complaints about plaintiff predated her protected activity, which occurred long before any adverse employment actions.

1. Standard of Review

Defendant's contentions implicate two potential standards of review: that applicable to an order granting a motion for new trial based on a finding the trial court erroneously granted summary judgment, and that applicable to an evidentiary ruling in the same context.

As to the trial court's determination on the motion for new trial itself, defendant contends the de novo standard of review applies because the trial court determined it made an error of law in granting defendant's motion for summary judgment. Plaintiff contends the abuse of discretion standard applies. We agree with defendant. On this point, this case is indistinguishable from Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 107 Cal.Rptr.2d 841, 24 P.3d 493, in which the Supreme Court held the de novo standard of review applies when a trial court grants a motion for new trial based on an error of law in granting a summary judgment motion. ( Id. at pp. 859-860, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

As to the evidentiary issues, defendant again contends the de novo standard of review applies, citing Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 198 Cal.Rptr.3d 900 ( Pipitone ). Here, we acknowledge a split in authority. In Pipitone , the Sixth District Court of Appeal concluded the de novo standard of review applied to evidentiary rulings "determined on the papers and based on questions of law such as hearsay." ( Id. at p. 1451, 198 Cal.Rptr.3d 900.) The Pipitone court based its conclusion on Reid v. Google, Inc. (2010) 50 Cal.4th 512, 113 Cal.Rptr.3d 327, 235 P.3d 988 ( Reid ).

In Reid , the Supreme Court applied the de novo standard of review to evidentiary objections upon which the trial court had failed to rule. ( Reid, supra , 50 Cal.4th at p. 535, 113 Cal.Rptr.3d 327, 235 P.3d 988.) The Supreme Court reasoned, "First, because there was no exercise of trial court discretion, the Court of Appeal had no occasion to determine whether the trial court abused it. Second, Google expressly invited the Court of Appeal to address its evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the general standard of review applicable to summary judgment rulings, that any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion." ( Ibid. ) The Supreme Court expressly declined to consider "whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo." ( Ibid. ) The Pipitone court was joined, at least in part, by the Fourth District, Division One, in Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 232 Cal.Rptr.3d 733, which held, "De novo review is proper [in summary judgment situations] where evidentiary objections raise questions of law, such as whether or not a statement is hearsay." ( Id. at p. 226, 232 Cal.Rptr.3d 733.)

But the weight of authority since Reid supports application of the abuse of discretion standard. Cases considering this question and applying the abuse of discretion standard after Reid have been published by the First District, Second District, Third District, Fourth District (Division One), Fifth District, and Sixth District² — in other words, essentially every district of the appellate courts of the State of California (except for this division and Division Two of this district), including the two courts with contrary published authority.

Moreover, application of the abuse of discretion standard is eminently sensible in light of the practical realities of evidentiary objections in summary judgment proceedings. Defendant raised evidentiary objections to some 79 separate portions of plaintiff's declarations opposing summary judgment — typically, multiple objections to each such portion. Defendant's evidentiary objections span nearly 100 pages. This quantity is not unusual for a motion for summary judgment: "We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical." ( Reid, supra , 50 Cal.4th at p. 532, 113 Cal.Rptr.3d 327, 235 P.3d 988.) As a result, trial courts typically rule on evidentiary objections in summary fashion, which often prevents us from determining the precise nature (i.e., principally legal or factual) of the trial court's ruling. And rulings on evidentiary objections often "involve trial courts making qualitative and sometimes equitable determinations," which are the sort of decisions we typically review for abuse of discretion. ( Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1124, 146...