Tarle v.
Kaiser Foundation Health Plan
Filed 7/2/12 Tarle v. Kaiser Foundation Health Plan CA2/3
Opinion
following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
PATRICIA TARLE,
Plaintiff
and Appellant,
v.
KAISER FOUNDATION HEALTH PLAN,
INC., et al.,
Defendants
and Respondents.
B224739a
(Los
Angeles County
Super.
Ct.
No. BC382696)
APPEAL from a judgment of the Superior Court of
County, David L. Minning, Judge. Judgment is reversed.
The Mathews Law Group and Charles T.
Mathews; Law Offices of Roxanne Huddleston and Roxanne Huddleston; The
Rager Law Firm and Jeffrey A. Rager for Plaintiff and Appellant.
Reed Smith and Deborah J. Broyles;
Cole Pedroza, Kenneth R. Pedroza and Joshua C. Traver for Defendants and
Respondents.
_______________________________________
Plaintiff and
appellant Patricia Tarle appeals from the summary
judgment entered in favor of defendants and respondents Kaiser Foundation
Hospitals, Kaiser Foundation Health Plan, Inc. (collectively, Kaiser), Dilip
Sedani and Wayne Rupnik in this employment discrimination action. Tarle contends the trial court erred in
sustaining defendants’ evidentiary objections to much of the evidence she
submitted in opposition to the summary judgment motion (and that such evidence
raises a triable issue of material fact).
However, Tarle never provided to the trial court any oral or written
opposition to the bulk of defendants’ objections. This case, therefore, raises the issue of
whether, in the context of a summary judgment motion, a party must provide
the trial court with such opposition to an opponent’s objections or be barred
from challenging on appeal the trial court’s order sustaining the
objections. We conclude that existing
law, in the factual context of this case, compels the result that a failure to
provide such opposition to the trial court on summary judgment bars
a party from challenging on appeal the trial court’s order sustaining the
unopposed evidentiary objections. We
also determine, however, that as both parties are responsible for substantial
flaws in the summary judgment briefing in this case, the proper procedure is to
remand with directions for a properly-briefed summary judgment motion.
As we will not ultimately resolve
the merits of defendants’ summary judgment, the underlying facts can be quickly
summarized. Tarle was employed by
Kaiser. Her immediate supervisor was
Rupnik; Rupnik’s supervisor was Sedani.
However, Rupnik’s office was in northern California, while
plaintiff worked in the same office as Sedani in southern California. Tarle alleges that Sedani mistreated her on
the basis of her gender. Although she
does not allege that Sedani made any sexually-based comments or express references
to her gender, Tarle alleges that Sedani’s mistreatment was gender-based. Tarle supports this conclusion with evidence
that Sedani mistreated other women, but treated men in similar positions much
better. Tarle alleges that Sedani’s
mistreatment included: publicly and
privately berating her; yelling; throwing papers at her; repeatedly slamming a
book on the table while she was attempting to give a presentation; moving into
her “personal space†while talking angrily; minimizing the accomplishments of
her all-female team; finding fault with women where men were excused for
similar mistakes; failing to give her an office when all men at her level had
offices; and failing to provide her and her team with necessary equipment
provided to men. Tarle alleges that she
and other women complained; their complaints were uniformly ignored or
determined to be unfounded by Kaiser. At
one point, after Tarle had filed a Department
of Fair Employment and Housing (DFEH) complaint against Sedani, Rupnik
prepared a performance review of Tarle in which she received several low
ratings for her ability to work within the department; she was specifically
identified as “too often let[ting] her emotions control her decision making process†and was directed to improve her “emotional
intelligence.†Tarle believed this
review to be discriminatory and retaliatory.
Tarle also believed that she was retaliated against by being excluded
from meetings which were necessary for her job.
Tarle ultimately resigned her position at Kaiser, when there was no
change in Sedani’s conduct and Kaiser’s internal investigation dragged on for
months with no result.
name="_ftnref1" title="">[1]
In response, defendants argue that
Sedani might have had a difficult management style, but he treated men and
women equally. They further argue that
Tarle was not constructively discharged; she did not resign her position until
after she had obtained another job. They
argue that Rupnik’s review of Tarle was not gender-based, but simply identified
flaws in Tarle’s behavior in relating to superiors. Finally, they argue that the review was not
retaliatory, in that the information it contained had been prepared prior to
Tarle’s DFEH complaint.
On December 21, 2007, Tarle filed a
complaint against defendants alleging 13 causes of action. Several causes of action were ultimately
dismissed. The remaining causes of
action, at issue in this appeal, are those for retaliation in violation of the
Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.) and public
policy; gender discrimination in violation of FEHA and public policy; gender
harassment in violation of FEHA; wrongful termination in violation of public
policy; and assault (relating to an incident in which Sedani threw papers at Tarle).
On December 12, 2008, defendants
filed their motion for summary judgment.
It was supported by evidence and a separate statement of undisputed
facts. Tarle opposed the summary judgment
motion. In support of her opposition,
Tarle submitted over 750 pages of evidence. Her evidence included, but was in no way
limited to, so-called “me too†evidence, testimony from four other women, who
testified to being the victim of, or observing, discriminatory and/or harassing
conduct from Sedani and/or Rupnik.
Tarle’s opposition gave rise to a substantial
number of evidentiary objections. On
May 15, 2009, defendants submitted 200 pages of objections, consisting of
335 separate objections. Most of
the objections asserted multiple grounds.
A typical objection (objection 330) stated, “Irrelevant
(Evid. Code §§ 210, 350-351); hearsay (Evid. Code § 1200);
improper legal opinion (Evid. Code § 800); lacks personal knowledge (Evid.
Code § 403(a)); lacks foundation (Evid. Code § 403); speculative
(Evid. Code § 702).â€
name="_ftnref3" title="">[3] Defendants included many objections to the
“me too†evidence. While they interposed
specific objections to specific excerpts from the testimony, they also objected
to the “me too†deposition excerpts in
their entirety on the basis of relevance.
Defendants’ objections were filed on
May 15, 2009, along with their reply.
The hearing on the summary judgment motion was set for June 4,
2009. Tarle did not file any opposition
to the objections, nor request a continuance for additional time in which to
prepare a written opposition.
Ultimately, the hearing was held on
June 11, 2009. Prior to the hearing, the
parties were provided with the court’s tentative ruling, which was to grant the
motion for summary judgment. The
tentative ruling indicated that 13 of defendants’ objections (identified by
number) were overruled, and the rest were sustained. At the hearing, Tarle’s counsel specifically
argued that sustaining the objections to the so-called “me too†evidence constituted
reversible error. Tarle did not argue
against any of the other tentative rulings on defendants’ objections.
The hearing was ultimately
continued, however, to allow for Tarle to receive additional discovery, and
submit additional briefing based on that discovery. On August 14, 2009, Tarle filed
supplemental points and authorities in opposition to the summary judgment
motion. Although the supplemental
briefing was permitted in order to allow Tarle to address the additional
discovery she had received, she spent the bulk of the brief addressing the
court’s tentative ruling against her.
She again argued for the admissibility of her “me too†evidence, but did
not address other evidentiary rulings.
A second hearing was held on
February 19, 2010. At the hearing, Tarle
argued for the admissibility of the “me too†evidence, and also argued for the
admissibility of an additional piece of evidence, against which a hearsay
objection had been interposed and tentatively sustained. Tarle did not argue against any of the other
evidentiary rulings which went against her in the court’s tentative ruling of
the previous June.
The trial court adopted its
tentative ruling and granted the motion for summary judgment.
establish a prima facie case of gender discrimination. Specifically, the court concluded that there
had been no adverse employment action or constructive discharge, and there was
no evidence of discriminatory motive.
Similar conclusions were reached with respect to Tarle’s causes of
action regarding harassment and retaliation.
As to the objections, the court’s
ruling expressly sustained all but 13 of defendants’ objections. The ruling specifically addressed Tarle’s “me
too†evidence, stating, “The conclusory opinions of third parties regarding the
reasons why they believe Defendants treated them a certain way have no bearing
on this case as to whether Plaintiff was in fact unlawfully discriminated
against.†However, as the court’s ruling
sustained all of defendants’ objections, except the 13 it overruled, the trial
court necessarily sustained defendants’ relevance objections to the “me tooâ€
evidence in its entirety, not merely
the specific objections addressed to the witnesses’ conclusory opinions. In other words, the court sustained relevance
objections to the other women’s testimony as to the specific ways in which
Sedani and/or Rupnik treated them, in addition to their testimony as to their
belief that such treatment was motivated by gender bias.
Judgment was entered in favor of
defendants. Tarle filed a timely notice
of appeal.
On appeal, Tarle challenged, for the
first time, the court’s ruling on the great bulk of defendants’
objections. For example, she argued for
the first time that defendants had improperly objected to evidence which defendants
had themselves relied upon. She also
argued, for the first time, that the objections failed to specify adequate
reasons. In addition she argued, for the
first time, that many of the objections were frivolous.
Tarle argued, also for the first
time, that the trial court’s ruling on the objections was insufficiently
specific to enable adequate appellate review.
or, in the alternative, reverse for specific rulings on each objection. At another point, she argues that we should
simply consider all of her evidence on appeal, objectionable or not – on the
basis that it is too burdensome to consider the merits of the trial court’s
ruling on each individual objection.
We sought additional briefing on the
issue of whether Tarle’s challenges to both the alleged procedural
improprieties of defendants’ objections (e.g., too many objections, lacking
specificity) and the substantive merits of the rulings on the objections (e.g.,
the objections were frivolous, or objected to evidence defendants had
themselves introduced) were waived by Tarle’s failure to raise them before the
trial court.
title="">[7] The parties submitted letter briefs as
requested.
This case presents the issue of
whether it is appropriate, in the factual context of this particular case, for
a party to challenge, on appeal from a summary judgment, rulings
sustaining objections to her evidence to which she never submitted oral or
written opposition. We conclude that a
party who fails to provide some oral or written opposition to objections, in
the context of a summary judgment motion, is barred from challenging the
adverse rulings on those objections on appeal.
Given the record before us, we must also address the question of the
proper disposition of this case.
Although we find that many of plaintiff’s arguments are barred on
appeal, due to her failure to raise them before the trial court, the summary
judgment procedure below, when viewed as a whole, was infected not only by
some erroneous rulings by the court but, more significantly, by the multiple,
voluminous, and often incomprehensible, motion papers filed by the
parties. This flawed process produced a
record that makes it impossible for this court to render a proper decision
on the merits. We therefore will reverse
the summary judgment and remand with directions for further proceedings.
1.
Challenge the Order
Sustaining the
Objections
In recent years,
California courts have struggled with the situation of how a trial court
is to respond when hundreds of objections
are interposed challenging evidence submitted in support of, or opposition to,
a summary judgment motion. The summary
judgment statute permits evidentiary objections (Code Civ. Proc., § 437c,
subd. (b)(3)) and presumes that a trial court will rule on them (Code Civ.
Proc., § 437c, subd. (c)). For a
time, there was appellate authority for the proposition that a trial court need
not rule on the individual objections, but could simply state that, in its
consideration of the summary judgment motion, it relied only on admissible
evidence. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d
1410.) Yet the appellate court which had
decided that opinion subsequently reversed itself (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th
564, 566) and our Supreme Court subsequently disapproved the initial opinion
“to the extent it permits the trial court to avoid ruling on specific
evidentiary objections†(Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 532, fn. 8). Thus, it is no longer in dispute that a trial
court must expressly rule on each properly
presented evidentiary objection. (
The law, however, has paid little
attention to the duties, if any, imposed on a party opposing the
evidentiary objections. Indeed, the
governing statute (Code Civ. Proc., § 437c) and rules of court (Cal. Rules
of Court, rules 3.1350-3.1354) do not even provide for a written opposition to
written objections. Is a trial court,
then, required to rule individually on perhaps hundreds of objections, with the
input and arguments of only the objecting party – with the proponent of the
evidence free to remain silent and then challenge any adverse rulings on
appeal? We believe, at least on the
unique facts presented by this record, that the answer must be no.
It is the general rule that a party
cannot raise a new theory on appeal unless the theory involves a purely legal
question determinable from facts which not only are uncontroverted in the
record, but which could not be altered by the presentation of additional
evidence. (People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31,
39-40.) While Tarle suggests evidentiary
objections can be resolved on appeal de novo,
this is not true with respect to any evidentiary argument which relies on the
presentation of a foundation. Thus, for
example, “ ‘if a hearsay objection is properly made, the burden shifts to
the party offering the hearsay to lay a proper foundation for its admissibility
under an exception to the hearsay rule.’ â€
v. Livaditis (1992) 2 Cal.4th 759, 778.)
Moreover, the law is already
established that when the proponent of hearsay testimony relies on a hearsay
exception, that proponent must assert the specific hearsay exception under
which the proponent argues the testimony is admissible. If not, the issue is not preserved for
appeal. (People v. Livaditis, supra, 2 Cal.4th at pp. 778-789.) “In order to preserve the claim for appeal,
the proponent has to have alerted the trial court to the exception relied
upon . . . . â€
(Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 282.)
“Where, as here, a proponent of evidence does not assert
a particular ground of admissibility below, he or she is precluded from
arguing on appeal that the evidence was admissible under a particular
theory. [Citations.]†(Ibid.)
We also note that our Supreme Court
has stated that, in order to “counter [the] disturbing trend†of over-objecting
at summary judgment, “at the summary judgment hearing, the parties—with the
trial court’s encouragement—should specify the evidentiary objections they
consider important, so that the court can focus its rulings on evidentiary
matters that are critical in resolving the summary judgment motion.†(Reid
v. Google, Inc., supra, at pp. 532‑533.) We do not think the Supreme Court would have
suggested this procedure if it believed that an opposing party could specify at
the hearing the evidentiary objections it believed were important (in this
case, those relating to the “me too†evidence) but then, on appeal, challenge
the trial court’s rulings on hundreds of other evidentiary objections.
We sought additional briefing on
whether a waiver rule should be implied in this context. Tarle’s response raised three policy
arguments which we briefly address.
First, Tarle argues that, as a party is permitted to submit written
objections as late as the reply papers (Cal. Rules of Court, rule 3.1354) and
oral objections at the hearing itself, there is insufficient time for a written
opposition to be prepared.
Preliminarily, this was not so in the instant matter, where the written
objections were submitted on May 15, 2009, and the hearing was ultimately held
on June 11, 2009, and subsequently continued to February 19, 2010.
courts will grant parties reasonable continuances to allow written oppositions
to be filed, where properly sought.
Moreover, we are not holding that written
opposition to objections must be submitted in order to challenge on appeal the
trial court’s ruling sustaining those objections. The argument in opposition must simply be
before the trial court, whether via a written opposition, oral argument at the
hearing, or even in the party’s written submissions in connection with which
the evidence was proffered.
name="_ftnref12" title="">[12]
Second, Tarle argues that imposing a
requirement of opposing objections, at risk of waiving the opposition, is
unduly burdensome. We disagree. Tarle’s concern is apparently that parties,
such as defendants in this case, submit excessive inconsequential
objections. Indeed, courts have
recognized that this “has become common practice.†(Reid
v. Google, Inc., supra, 50 Cal.4th at p. 532; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243,
289.) The courts have also recognized,
however, that trial judges are not powerless to prevent the practice. A trial court has the inherent power to
control the proceedings before it, and is encouraged to use that power when the
written submissions get out of hand. (
Cal.App.4th at p. 290.) Our Supreme
Court has recognized that litigants raising innumerable objections which relate
to matters that are not pertinent to the resolution of the summary judgment
motion “may face informal reprimands or formal sanctions for engaging in
abusive practices.†(
at p. 532.) If a proponent of evidence
believes that the opposing party has flooded the court with numerous
inconsequential objections, the proper course of action is to seek trial court
intervention at that time, and obtain
a ruling requiring the opposing party to exercise restraint. In other words, when faced with burdensome
objections, a party should challenge the objections as burdensome in the trial
court; it is inappropriate to allow the trial court to rule on all of the
objections (as is its duty), and then raise for the first time on appeal
a complaint that the objections were too numerous to be properly
considered by the trial court.
Third, Tarle argues that it is
unjust for an appellate court to uphold a summary judgment based on evidentiary
rulings which the appellate court knows were erroneous (and which were
established to be error on appeal). We
believe, however, that it is equally unjust for a party to lead a trial
court to make an erroneous ruling on an evidentiary objection by failing to
suggest to the court a basis on which the evidence is admissible, and then
raise the argument for the first time on appeal. Trial courts are not mind-readers. When an evidentiary objection is raised, and
the proponent of the evidence fails to call to the court’s attention a theory
on which the evidence is admissible,
additional evidence which establishes a foundation for the challenged evidence,
or an argument for limited admissibility for a particular purpose, those
arguments in opposition must be considered waived.
wishes, like Tarle, to challenge the objections as not being sufficiently
specific to enable the court to rule, or as being unduly numerous and
burdensome, the trial court (and the objecting party) must be given an
opportunity to address these challenges prior to the trial court’s ruling on
summary judgment, where they can best be addressed and, if necessary, the
objections corrected.
In sum, Tarle’s policy arguments
against the imposition of a waiver rule in this context are unpersuasive. We see no reason to treat evidentiary rulings
different from any other ruling: an
appellant who does not raise an argument before the trial court is barred from
raising it for the first time on appeal.
2. Procedure
on Remand
Having concluded
that Tarle is subject to a rule of waiver with respect to the vast bulk of her
evidentiary arguments, we must now consider how to resolve this appeal. While it is clear that Tarle failed to oppose
evidentiary objections that she should have opposed, a more detailed review of
the procedural history of this case establishes that both parties are equally
at fault for the state of the record.
This case never should have reached the point where Tarle was faced with
the prospect of responding to hundreds of multi-part evidentiary objections or
risk waiving them. It would be unjust,
in these circumstances, for Tarle alone to suffer the consequences.
We begin with defendants’ motion for
summary judgment, and, more specifically, their separate statement of
undisputed facts. Code of Civil
Procedure section 437c, subdivision (b)(1) provides that a separate
statement shall “set[] forth plainly and concisely all material facts which the
moving party contends are undisputed.â€
Defendants’ separate statement set forth as “undisputed material factsâ€
items which were not facts, but were rather allegations or statements of
opinion.
title="">[15] For example, defendants assert it was
undisputed that “Plaintiff admits Sedani never said anything to her about her
being a female.†This is not a fact; the
corresponding fact would be: “Sedani
never said anything to plaintiff about her being a female.†The fact
would be evidenced by Tarle’s admission; the admission itself is not a
fact. While the distinction is not
particularly significant in this instance, it is critical when defendants take
the position that the corresponding fact is untrue.
fact that “Plaintiff claims she was physically afraid of Sedani at her first
one-on-one meeting because she felt he was angry.†Defendants do not agree that Tarle was afraid
of Sedani, nor do they agree that Sedani was angry. What, then, are they asserting as an
undisputed fact? Are defendants here attempting to claim that
it is undisputed that plaintiff bases her allegation of fear
angry? This is not an undisputed fact,
but defendant’s paraphrase of a contention with which defendants
disagree. Moreover, it is a vast
oversimplification of Tarle’s deposition testimony cited in support of the
purported fact.
Tarle submitted over 750 pages of
“evidence†in support of her opposition to the summary judgment motion. Her opposition to defendants’ separate
statement was lengthy and, in many respects, clearly over-inclusive.
the length of her opposition; it was caused in great part by defendants’
inclusion of contentions, rather than facts, in their separate statement. For example, defendants’ undisputed fact 45
reads, “Plaintiff’s belief that she was treated differently on the basis of her
gender is based on her belief that Sedani treated her differently from the
males in her department and because Sedani approved her [purportedly negative]
performance evaluation.†Tarle’s
response begins, “Disputed. There is
a mountain of evidence of gender bias against Dilip Sedani creating
triable issues of fact.†The response to
this one “material fact†goes on for 39 pages.
It is so long that it has subheadings (A through K), sub-subheadings,
and bullet points. While this, at first,
appears to be an improper attempt to include legal argument in a separate
statement, it is in some way understandable.
Defendant’s undisputed fact 45, in effect, asserted that it was
undisputed that Tarle’s cause of action for gender discrimination was based on
two simple facts; it is no surprise that Tarle responded that her cause of
action was based on a great many things.
Thus, the fact that Tarle provided every scrap of evidence she possessed
in opposition to the summary judgment motion was caused, in large part, by the
fact that defendant’s motion papers had asserted oversimplified
characterizations of Tarle’s contentions as “undisputed material facts.â€
Turning to defendants’ objections,
it is apparent to this court that many of the objections were over-inclusive. For example, defendants objected, in objection
6, to the following testimony of Tarle’s:
“Q
And can you describe that circumstance where in January of 2006 [Sedani]
told you to get out of his office?
“A
Yes. I came in and I asked – he
said, ‘Well, do you have any documents for me?’
And I didn’t know what that meant.
I said, ‘I don’t know what you mean, do I have any documents for
you.’ He goes, ‘Well, you can just get
out of my office if you don’t have anything for me. I don’t want you in here,’ in those very
angry tones like that and said, ‘Get out.’
So I left his office.â€
Defendants objected to this
testimony as speculative, improper opinion, conclusory, and lacking
foundation. While Tarle’s
characterization of Sedani’s “tones†as “very angry†was conceivably objectionable,
the objection was not limited to the possibly improper characterization (with
the remainder of the testimony provided only for context); instead, defendants
objected to the entire deposition excerpt.
In short, it is clear that Tarle
failed to oppose evidentiary objections she should have opposed. It is also clear, however, that defendant
made numerous overbroad objections which they should not have made. It is further clear that defendants’ numerous
objections were caused by Tarle’s proffer of a great deal of evidence, much of
which was inadmissible in part. Finally, it is clear that Tarle’s
oversubmission of evidence was caused, in part, by defendants’ separate
statement of undisputed material facts including a great deal of items which
were neither material nor facts. As a
general rule, when a party’s summary judgment papers are not in compliance with
the law or rules, the proper remedy is to give the party an opportunity to cure
the error. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) In this case, both parties are to blame for
the briefing on this summary judgment motion spiraling out of control. As we have noted, it would be unjust, in
these circumstances, for Tarle alone to suffer the consequences.
When we look at this record and
attempt to consider all of the evidence which may be admissible, we cannot
determine as a matter of law that Tarle does not have a single viable
cause of action.
title="">[19] We therefore will reverse, and remand with
directions that defendants may refile a motion for summary judgment, based only
on purportedly undisputed material facts.
A properly briefed motion for summary judgment, if defendants choose to
bring such a motion, is the only way to achieve justice in this case.
The judgment is reversed. The matter remanded to the trial court to
provide to the parties the opportunity to refile and oppose a new and properly
prepared motion for summary judgment (should defendants choose to file one) and
then to conduct such further proceedings as may be appropriate and not
inconsistent with the views expressed herein.
The parties are each to bear their own
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P.
J.
ALDRICH, J.
name="_ftn1" title="">[1] A few days after
Tarle resigned, she received a letter informing her that Kaiser’s investigation
concluded that there was insufficient evidence to support her charges of
discrimination, harassment, and retaliation.
name="_ftn2" title="">[2] Tarle also alleged a
cause of action for defamation. On
appeal, Tarle “does not challenge the [summary adjudication] ruling on her
cause of action for defamation.â€
