Love v. The Regents of the
Filed 9/17/12 Love v. The Regents of the University of California CA2/6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
VINCENT LOVE,
Plaintiff and Appellant,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Respondent.
2d Civil No. B230418
(Super. Ct. No. 1339741)
(Santa
Barbara County)
Vincent Love
appeals the grant of
judgment to respondent, The Regents of the University
of California, and the dismissal of
his complaint against respondent for discrimination, breach of contract,
retaliation and defamation. Appellant
contends that the trial court committed prejudicial error by granting summary
judgment and dismissing his case without determining that respondent's evidence
was not substantial, or determining who was telling the truth. We affirm.
BACKGROUND
Appellant
worked at the University of California
Santa Barbara in the respondent's custodial
department from 1989 until 2002, when he transferred to the facilities
management department (grounds). He
worked in grounds through July 3, 2007. Respondent often cited appellant for
misconduct or poor performance when he was a custodian. It suspended him in 1994, after investigating
a sexual harassment charge by female coworkers.
In 1996, respondent suspended appellant for belligerent, physically
aggressive conduct. Respondent rated
appellant's 2001 and 2002 performance unsatisfactory in written reviews that
cited multiple deficiencies, including failure to follow procedures and excessive
absences.
Respondent
transferred appellant to the grounds department in 2002, provided him with
months of cross-training, and reclassified him as a groundskeeper in 2003. Appellant's performance reviews from 2003
through 2005 include comments about his poor communication skills. In early 2003, respondent warned him that he
could not remain in grounds if he could not develop the ability to work with a
variety of people and accommodate "changing work directives." Respondent allocated time and personnel to
appellant's improvement. Appellant
failed to improve significantly, and respondent continued to encourage and
support his improvement, using a variety of means including counseling and
discipline.
In
2006, respondent's grounds management often advised appellant that he must
improve his performance and that continued misconduct could result in his
termination. It not only disciplined him
but also proposed a plan with reciprocal actions for respondent and appellant
to take to facilitate his improvement.
It modified that plan after meeting with appellant and his
representative.
On
December 15, and 22, 2006, respondent advised appellant that it was providing
him the opportunity to attend professional counseling at respondent's expense,
off-site, while receiving compensation.
In January 2007, appellant made loud, intimidating, belligerent threats
to his supervisor, insisting that respondent provide on-site counseling for
him. Respondent suspended appellant with
a warning that such conduct was not acceptable and could result in further
discipline, up to and including termination.
After similar events transpired, respondent notified appellant on June 21, 2007, that his employment
would be terminated effective July 3,
2007. It terminated him on
that date.
(DFEH) Complaints
On
May 5, 2006, appellant filed
a complaint with the DFEH alleging that respondent denied him training
opportunities because of his race.
Although its internal investigation indicated otherwise, on July 14, 2006, respondent sent
appellant a letter offering him additional training opportunities. He declined that training because it was
off-site.
On
March 19, 2007, the DFEH
sent appellant a letter stating that its investigation had "failed to link
racial animus to the matters [appellant] complained of." The DFEH expressly found that
appellant had "serious job performance issues for several
years."
On
April 3, 2007, the DFEH
issued a combined notice of case closure and right-to-sue letter. It advised appellant that a civil action
based upon his complaint must be filed within one year from April 3, 2007. Appellant did not file an action based on
that complaint within the one-year limitations period specified in the
right-to-sue letter.
On
December 12, 2007,
appellant filed a complaint with the DFEH alleging that respondent terminated
him in retaliation for having filed his 2006 DFEH complaint. On February
13, 2008, after investigating his 2007 retaliation complaint, the
DFEH notified appellant that it was closing its investigation and issuing a
right-to-sue notice.
On
October 24, 2008,
appellant filed a complaint in the Santa Clara County Superior Court naming
respondent as defendant in a wrongful termination action. That court granted respondent's motion to
change venue and transferred the action to the trial court (Santa Barbara
County Superior Court). Appellant has
appeared in pro per at all stages of this action.
On
December 10, 2009,
appellant filed his third amended complaint alleging causes of action for
termination and discriminatory failure to train), retaliation and
defamation. Respondent deposed appellant
on June 8, 2010.
On
August 23, 2010, respondent filed a motion for summary judgment, or in the
alternative, for summary adjudication of appellant's claims. Respondent submitted evidence in support of
its motion, including copies of appellant's poor performance reviews, and
records of the progressive discipline and opportunities for improvement it had
provided appellant for many years. It also
submitted excerpts of deposition testimony in which appellant admitted that he
could not identify any facts to show that his termination was motivated by
retaliation. In addition, respondent
submitted documentation to show that appellant's failure-to-train and
defamation claims were barred by the applicable statutes of limitations.
On
October 21, 2010, appellant submitted a two-page, hand-printed opposition to
respondent's motion for summary judgment stating that all of his
"evaluations but one [had] been satisfactory," and that he had witnesses,
documents and photographic evidence. He
did not submit a separate statement as required by Code of Civil Procedure
section 437c, subdivision (b)(3),
name="_ftnref1" title="">
or deposition testimony, declarations, documents, or any evidence whatsoever,
to support his opposition.
On
November 8, 2010, the trial court heard the summary judgment motion in the
presence of both parties. On that date
it ruled that appellant's claims presented no triable issues of material fact,
and granted respondent's motion. On
December 23, 2010, it entered summary judgment in respondent's favor and
dismissed appellant's action with prejudice.
DISCUSSION
Appellant
contends that the trial court erred in granting summary judgment and dismissing
his action because there were, in fact, triable issues of fact. We disagree.
Summary
judgment is warranted when all of the papers submitted show there is no triable
issue of any material fact and the moving party is entitled to a judgment as a
it contends that the action lacks merit.
(Id. at subd. (a).) A defendant meets its initial burden of
showing a cause of action is without merit if it has shown that one or more elements
of the cause of action cannot be established, or that there is a complete
defense thereto. (Id. at subd. (p)(2).) Once
the defendant makes such a showing, the burden shifts to the plaintiff to
produce evidence demonstrating the existence of a triable issue of material
fact. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.)
"When
reviewing a trial court's decision granting summary judgment to a defendant,
we, '[l]ike the trial court, . . . view the evidence in the light most
favorable to the opposing party [i.e., the plaintiff] and accept all inferences
reasonably drawn therefrom.
[Citation.]' [Citation.] We use the same three-step analysis as the
trial court: (1) identifying the issues framed by the pleadings; (2) determining
whether the defendant negated the plaintiff's claims; and (3) deciding whether
the plaintiff demonstrated the existence of a triable, material factual
issue. [Citation.]" (Suarez
v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 436-437.) In reviewing the trial court's ruling, this
court takes the facts from the record that was before the trial court when it
ruled on the motion for summary judgment.
(Conroy v. Regents of University
of California (2009) 45 Cal.4th 1244, 1249-1250.)
In
opposing the summary judgment motion, appellant asserted that he could provide
witnesses and other evidence at trial to dispute respondent's evidence. He did not, however, present any evidence in
the trial court before it ruled on that motion, dismissed the within action,
and entered judgment in respondent's favor.
Appellant states in his opening brief that when he filed his opposition
to the motion, he was not able to include his "'evidence binder' at the
same time because [he] was still working on it," and when he "finally
got it together the superior court could not take [his] 'evidence binder'
because the case was already dismissed on summary judgment[]." Nothing in the record or the briefs suggests
that appellant asked the trial court for a continuance to submit further
evidence before it ruled on the motion.
In
his opening brief, appellant asserts that each time he "went to a court
hearing, [he] always had [his] document of evidence of fact with [him] in case
the judge ask[ed him] if [he had] proof of evidence to show, to determine the
facts, [but] the judge never ask[ed]."
However, a court considering a summary judgment motion is not required
to "uncover and evaluate the significance of unidentified documents"
or become "an advocate for parties resisting summary disposition of their
claims." (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830,
842.)
An
employer who moves for summary judgment in an employment discrimination case
has the initial burden of establishing either that one or more elements of the
plaintiff's prima facie case is lacking, or that the adverse employment action
was based upon legitimate, nondiscriminatory reasons. (Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203;
160 Cal.App.4th 994, 1003.) Respondent
met that burden. Appellant then had the
burden of producing "substantial evidence" that respondent's stated
reason for the adverse action was a pretext for intentional discrimination,
rather than the actual basis for the action (termination or failure to
train). (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1004-1005.) Appellant failed to meet
that burden.
The
evidence before the trial court established that there was no triable issue of
material fact as to any of appellant's claims.
For example, the evidence demonstrated that he was terminated for cause,
and not for any discriminatory reason, following years of written warnings, suspensions,
and other forms of progressive discipline.
Under the circumstances, respondent was entitled to summary judgment on
appellant's wrongful termination and discrimination actions. (§ 437c, subd. (c); Hicks v. KNTV Television, Inc., supra, 160 Cal.App.4th at p. 1003.)
Respondent
also demonstrated that there was no triable issue of fact concerning
appellant's failure-to-train claim.
name="_ftnref2" title="">
DFEH investigated appellant's 2006 denial-of-training discrimination claim, it
found that it lacked merit, and that appellant had had "serious job
performance issues for several years."
Respondent further showed that appellant declined to participate in
certain training that it offered him.
The evidence
before the trial court further established that appellant's denial-of-training
discrimination claim is barred by the applicable statute of limitations. Government Code section 12965, subdivision
(e)(2) requires that a suit for discrimination be brought within "one year
from the date of the right-to-sue notice by the [DFEH]." The DFEH sent appellant a right-to-sue letter
informing him that any civil action based on the claims in his complaint was
required to be filed within one year of April 3, 2007. Appellant first filed the within action more
than a year after that date, on October 24, 2008.
Further, the
evidence established that appellant's defamation claim is barred by the
action for defamation must be brought within one year of the date that the
defamatory statement is published. (See
1230, 1246.) Appellant does not allege
that respondent or its employees made any defamatory statements after his July 3,
2007, termination. He first filed the
within action more than a year later, on October 24, 2008.
DISPOSITION
The judgment
is affirmed. The parties shall bear
their own costs on appeal.
NOT
TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P.J.
YEGAN, J.
Colleen K. Sterne, Judge
Superior Court County
of Santa Barbara
______________________________
Vincent
Love, in pro. per., for Appellant.
Price,
Postel & Parma, Timothy E. Metzinger, for Respondent.
name="_ftn1" title="">[1]
All statutory references are to
the Code of Civil Procedure unless otherwise stated.
Although appellant pleaded the termination of
employment and failure to train as one breach of contract cause of action, each
claim constitutes an independent basis for relief. We therefore consider them separately. (Lilienthal
& Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854.)
