Filed 4/6/20 Claiborne v. FedEx Corp. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

ELIZABETH CLAIBORNE,

Plaintiff and Appellant,

v.

FEDEX CORPORATION, INC.,

et al.,

Defendants and Respondents.

B291098

(Los Angeles County

Super. Ct. No. BC613096)

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara Ann Meiers, Judge. Affirmed.

Law Office of Twila S. White and Twila S. White for Plaintiff and Appellant.

David S. Wilson, III for Defendants and Respondents.

____________________

Plaintiff Elizabeth Claiborne was terminated along with nine co-workers for submitting false time cards to her employer, defendant Federal Express Corporation (FedEx). Claiborne, an African-American woman who worked in aircraft maintenance, asserted her termination was discriminatory based on her race and gender, and in retaliation for prior complaints about perceived inequality in her pay, discrimination, and harassing conduct. She sued FedEx and two of its employees, alleging numerous discrimination and retaliation-based claims.

Defendants moved for summary judgment, or in the alternative summary adjudication. The trial court granted summary judgment, finding that Claiborne failed to establish a triable issue of material fact as to any of her causes of action. Claiborne’s primary contention on appeal is that bias on the part of the trial court mandates reversal. She also asserts there are triable issues of fact preventing summary judgment. We find no evidence of trial court bias or the appearance of bias. As Claiborne otherwise fails to demonstrate error given multiple deficiencies in her briefing, we affirm.

BACKGROUND

A. Claiborne’s Hiring and Termination

Claiborne began working for FedEx through Volt, a temporary staffing agency, in January 2006. She became a permanent FedEx employee later that same year. During her employment, she made complaints regarding among other things perceived inequality in her pay as compared to others, alleged differences in treatment based on her race and gender, and in one instance racially charged comments allegedly made by a co-worker concerning President Obama. Claiborne also complained she suffered retaliation for registering her complaints.

Claiborne was terminated in early 2015, along with 9 other employees of different races and gender, following an audit that revealed the employees routinely recorded their scheduled start and stop times on their time cards, even though their actual start and stop times differed from the scheduled ones. Claiborne asserts the time card-related reasons for her termination were pretextual, and the actual motive was discriminatory and/or retaliation for her past complaints.

B. Pleadings

Claiborne filed her operative first amended complaint on July 11, 2016, naming FedEx and two individuals as defendants. As to all defendants, Claiborne alleged causes of action for harassment and hostile work environment in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940, subd. (j)); intentional infliction of emotional distress; and defamation. As to FedEx alone, Claiborne asserted causes of action for discrimination based on race and gender; retaliation; and failure to prevent harassment, discrimination, and retaliation, in violation of FEHA (Gov. Code, § 12940, subds. (a), (h) & (k)). She also asserted causes of action against FedEx for retaliation for engaging in protected activity in violation of Labor Code sections 1102.5 and 1197.5; negligent hiring, supervision, and retention; and wrongful discharge in violation of public policy.

FedEx answered Claiborne’s complaint and asserted 47 affirmative defenses, including that Claiborne’s causes of action were barred by the statute of limitations, failure to exhaust administrative remedies, and lack of jurisdiction based on the failure to file claims with the Department of Fair Employment and Housing (DFEH). The individual defendants filed a separate answer and asserted the same affirmative defenses.

B. Claiborne’s Motions To Disqualify The Trial Court Judge

Defendants filed their original summary judgment motion prior to May 2017. On May 18, 2017, the parties entered into a joint stipulation to continue the hearing on the summary judgment motion and trial, based on the need for additional discovery, the parties’ intent to engage in mediation, and counsel unavailability. On May 24, the trial court treated the stipulation as a motion for a continuance and denied the motion, finding no good cause for a continuance.

On May 26, 2017, Claiborne’s counsel, Twila S. White, filed an ex parte application to continue the trial date, arguing there was good cause for a continuance to complete discovery, so Claiborne could oppose the motion for summary judgment. The trial court denied the application without prejudice, noting that Claiborne had a year in which to develop evidence showing a triable issue of material fact, and she had no obligation to obtain evidence to rebut everything defendants’ witnesses said.

On May 30, 2017 White filed a motion to disqualify the trial court judge. She claimed: “During the hearing on the ex parte, Judge Meiers made several discriminatory and biased remarks . . . .” On May 31, White filed an ex parte application to disqualify Judge Meiers on the same basis. Defense counsel opposed the motion to disqualify. He argued that White’s motion “appears to be an attempt to obtain the trial continuance she seeks, rather than a legitimate challenge to the impartiality of Judge Meiers.” Defendants claimed that the allegations in the supporting declarations “are false. Judge Meiers did not say or do anything to call into doubt her ability to evaluate [Claiborne’s] case fairly and impartially.”

At the May 31 hearing on the ex parte application, the trial court noted that a disqualification motion under Code of Civil Procedure section 170.1 cannot be made ex parte; code section 170.6 sets forth the procedures by which the motion must be made. White asked the court to advance the date. The court requested that White not interrupt it; White immediately requested again that the court advance the date.

The court continued: “I wanted to go on to say that I am shocked at what you have put in here. Among other things, . . . you said: ‘Judge Meiers stated that she hates that employers get attorney fees against them by plaintiffs’ in discrimination cases. She stated that she is against fee shifting arrangements in FEHA cases and that plaintiffs should have to pay. She stated that she does not agree with the law and Legislature on this issue,’ end quote. That is totally, absolutely, unequivocally untrue . . . .”

White interrupted: “That is what you stated.” She added: “And I was equally shocked that you said it.” The following colloquy then occurred:

“The Court: I told you to stop interrupting me and I will tell you what I said. I said . . . .

“Ms. White: I was very shocked by what the court stated.

“The Court: Ma’am, if you don’t stop talking, I am going to step off this bench until you are ready to control yourself.

“Ms. White: Are you threatening me, your honor?

“The Court: Are you ready to control yourself?

“Ms. White: Are you physically threatening me?

“The Court: I said I am going to step off the bench, and that’s what I’m going to do right now and go into chambers until you are ready to control yourself . . . .

“Ms. White: I don’t feel comfortable . . . .

“The Court: . . . and stop interrupting me.

“Ms. White: . . . based on the comments that were stated last week and what has transpired today in this courtroom. I do . . . .

“The Court: Will you call the deputy, please. Because this attorney will not let this court finish what I am trying to say.” It appears from the minute order for the hearing that a deputy was ultimately not summoned.

The court then proceeded to explain that it had stated that it thought the law was wrong “in allowing attorney fees to be assessed against plaintiffs. Against plaintiffs.” (Italics added.) The court went on to explain why it thought this to be the case. White again interrupted, and the court asked counsel to let it finish speaking. After finishing its explanation of what it said about attorney fees, the court said it was not going to comment on the rest of the allegations in the disqualification motion, “[b]ut that paragraph [on fees] was so outrageous and so totally contrary to the views of this court, as I expressed them to you and as I have expressed them in the past. It’s shocking to me.” White responded: “It was very shocking to me.” With one further interruption from White, the court denied the ex parte application as improper. After ruling, the court concluded the hearing by saying “There is no more to be said. There is nothing more to be reported.”

White immediately filed a second ex parte application to disqualify the trial court or, in the alternative, shorten time for the hearing on the motion and stay the proceedings until the motion was heard. This application repeated the allegations of the previous motion and ex parte application, including the statement regarding fee shifting which the court adamantly had denied making. In support of the application, White filed a declaration, stating that at the hearing on the previous application, “Judge Meiers stated that she was shocked and outraged by [Claiborne’s] motion. The hearing became very uncomfortable for me, with Judge Meiers directing the court clerk to call the deputy. Due to the present conflict in that regard, [Claiborne] brings this application to disqualify Judge Meiers before” the supervising judge of the Civil Division. Defendants opposed the application.

On June 2, 2017, the trial court filed an order striking the statement of disqualification. The trial court ruled that the ex parte application was being treated as a statement of disqualification called for under Code of Civil Procedure section 170.1. The court found no valid ground for disqualification under Code of Civil Procedure section 170.2, subdivision (b), which provides that “[i]t shall not be grounds for disqualification that the judge” “[h]as in any capacity expressed a view on a legal or factual issue presented in the proceeding . . . .” The judge found Claiborne “rests her entire motion on Judge Meiers’ alleged expression of such views.” The court added that its ruling was final and reviewable only by petition for writ of mandate in the Court of Appeal.

Claiborne filed a petition for writ of mandate on June 9, 2017. On June 14, we summarily denied the petition because Claiborne did not serve a copy of the statement of disqualification on FedEx or its counsel as required by Code of Civil Procedure, section 170.3, subdivision (c)(1). Claiborne filed a second petition for writ of mandate the following day, arguing the denial of her June 9, 2017 petition was erroneous. That second petition for writ of mandate was denied on July 6, 2017.

C. Summary Judgment Motion

Defendants filed an amended summary judgment motion on January 5, 2018. Claiborne filed her opposition on March 9, 2018.

On March 26, 2018, after hearing oral argument, the trial court granted the amended summary judgment motion. The court issued a lengthy written order explaining its reasons for granting the motion.

The court entered judgment in defendants’ favor on April 24, 2018. Claiborne timely appealed.

DISCUSSION

A. Claiborne’s Assertions of Judicial Bias

Claiborne first claims that judicial bias mandates reversal. She argues two categories of purported bias: oral comments by the court during various hearings that she asserts showed bias towards Claiborne and towards discrimination cases, and alleged legal errors made by the court. The record does not support these accusations.

Claiborne’s complaints about statements by the court focus on five hearings: the May 26, 2017 ex parte hearing regarding a trial continuance, the May 30, 2017 ex parte hearing, the May 31, 2017 ex parte hearing, the March 23, 2018 hearing on the motion for summary judgment, and a June 11, 2018 hearing on Claiborne’s motion to tax costs. As for the May 26 and 30 hearings, we have no reporter’s transcript of the trial court’s alleged remarks. At the May 31st hearing, the court adamantly denied making statements about which Claiborne complains, characterizing Claiborne’s allegations as “totally, absolutely, unequivocally untrue.” Claiborne, as the appellant, has the burden of providing an adequate record to review the issues she raises on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Her failure to provide an adequate record regarding purported comments on May 26 and May 30 “ ‘requires that the issue be resolved against [her].’ [Citation.]” (Ibid.)

With regard to the May 31st hearing, “ ‘[i]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney . . . ignores the court’s instructions, or otherwise engages in improper or delaying behavior.’ [Citation].” (People v. Snow (2003) 30 Cal.4th 43, 78.) While Claiborne complains about the court’s admonitions to her counsel not to interrupt or it would temporarily recess the hearing, that it would call a bailiff into the courtroom to ensure order and decorum, and the court informing counsel and the court reporter that it had ruled and the hearing had concluded, those actions were well within the court’s discretion to control the proceedings before it. Those comments did not deny Claiborne a fair hearing, and did not create the appearance of any disqualifying bias.

As for the summary judgment hearing, Claiborne asserts she was denied an opportunity to be heard. This claim is baseless. Claiborne provides only a portion of the reporter’s transcript from that hearing beginning at page 29 (in other words, after significant argument had already occurred) where the court declined to permit further argument from plaintiff’s counsel. Claiborne further takes the court’s statement out of context by quoting only its response “No, you can’t” after counsel asked to be heard. The court went on to explain, in language omitted by Claiborne, that it was denying the request because the moving party “ha[d the] first and last word,” the moving parties (defendants) had already made their rebuttal argument following argument by plaintiff’s counsel in opposition to the motion, and therefore argument had concluded and the court was taking the matter under submission. Following standard motion argument practice, and denying sur-rebuttal argument, does not demonstrate judicial bias.

That brings us to the June 11, 2018 hearing. Claiborne appears to argue the court’s comments about the potential frivolousness of her action demonstrate the court was biased when it decided the motion for summary judgment. This again misrepresents the context of the court’s comments. Among the issues the court needed to address at the June 11 hearing, which concerned Claiborne’s motion to tax costs, was whether Claiborne’s claims were frivolous such that costs might be assessed against her under FEHA. Placed in the proper context, the court’s give and take with counsel in reaction to the parties’ arguments on frivolousness hardly demonstrate it had pre-determined the lawsuit was frivolous when it considered the motion for summary judgment nearly three months earlier. Moreover, after considering the arguments, the court granted Claiborne’s motion to tax costs “because [it did] not believe that this case presents a picture sufficient to justify a finding of ‘frivolousness.’ ”

Claiborne lastly contends that various legal errors demonstrate the trial court’s bias. Even if we assume errors were made, “[m]ere judicial error does not establish bias and normally is not a proper ground for disqualification.” (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079.) To rise to the level of bias or the appearance of bias, “ ‘ “the court’s rulings [must] suggest the ‘whimsical disregard’ of a statutory scheme.” ’ ” (Ibid.) While Claiborne argues the trial court erred, nothing suggests the court whimsically disregarded the applicable law. Instead, the court considered a voluminous record, and issued a lengthy written order addressing in detail the parties’ arguments on motion for summary judgment.

B. Claiborne Has Forfeited Her Challenges to the Grant of Summary Judgment

A party moving for summary judgment “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if [it] carries [its] burden of production, [it] causes a shift, and the opposing party is then subjected to a burden of production of [her] own to make a prima facie showing of the existence of a triable issue of material fact. . . . A burden of production entails . . . the presentation of ‘evidence.’ (Evid. Code, § 110.)” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889; Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 957, fn. 4 [“evidence (admissions, discovery responses or otherwise) must be presented to prove a fact”].)

Summary judgment is to be granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

We limit ourselves, as did the trial court, to admissible evidence. (Code Civ. Proc., § 437c, subd. (d); see Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487-1488.) We note the principle on which the trial court implicitly relied, that “[a] party ‘cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.’ [Citation.] ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ [Citations.]” (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657.)

On appeal, parties are required to support any reference in their briefs to a matter in the record by citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 46; American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 284.) Legal arguments must be stated under separate headings, and supported by meaningful argument and citations to appropriate legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)

We recite these principles because the statement of facts in Claiborne’s opening brief contains not only references to the evidence presented on the summary judgment motion but also argument as to the significance or meaning of such evidence, in the guise of facts but unsupported by any citation to the record. Additionally, many of the factual statements in the brief are bereft of record support (Cal. Rules of Court, rule 8.204(a)(1)(c)), impermissibly cite as support memoranda of points and authorities (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590), or improperly rely on evidence outside of the summary judgment record before the trial court (Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 661).

Additionally, Claiborne’s separate statement of disputed material facts does not set forth disputed and undisputed facts as required by Code of Civil Procedure section 437c, subdivision (b)(3). Instead, it includes ample argument and references to procedural matters. For example, in response to defendants’ statement of undisputed fact that “[p]lanners sequence and schedule the work performed on FedEx wide body aircraft undergoing heavy maintenance checks,” Claiborne listed her job duties, referred to her previous work for FedEx as a temporary employee, stated that she was not required to have certain licenses and never claimed to have them, named the other employees who did not have the licenses, and stated that FedEx management sent another employee to trainings so that he could obtain his license. As defendants noted in their reply, the “argument is irrelevant and does not set forth material evidence controverting [d]efendants’ factual statement.”

Defendants argue that Claiborne’s failure to comply with applicable appellate rules should be construed as a waiver or forfeiture of her arguments that the court erred in granting summary judgment. We agree. Claiborne’s failure to follow the rules applicable to summary judgments and appellate briefs imposes a burden on the courts. As noted in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, “[a] construction [of Code of Civil Procedure section 437c] permitting the court to disregard evidence not referenced in the moving party’s separate statement recognizes the most efficient manner for trial judges to use these statements of undisputed facts in ruling on motions for summary judgment. When the moving party’s statement is laid side by side with the opposing party’s responsive separate statement, the court is directed to the specific evidence supporting any facts alleged to be disputed. Using this process, the court need only review evidence pertaining to disputed facts; there is no need for it to review evidence supporting facts which are agreed to be undisputed nor evidence not referenced in the moving party’s separate statement or in the opposing party’s responsive statement, at least insofar as the opposing party relies on facts which are claimed to be disputed.” (Id. at p. 314.) Because Claiborne did not adhere to the requirements for a separate statement, we are unable to appropriately utilize it to identify undisputed facts and examine the evidence in the voluminous record only where the facts are disputed.

Similarly, the purpose of the requirement that the parties’ briefs support any reference to a matter in the record with a citation to the place in the record in which that matter appears “is to enable appellate justices and staff attorneys to locate relevant portions of the record expeditiously.” (Alki Partners, LP v. DB Fund Services, LLC, supra, 4 Cal.App.5th at pp. 589-590.) “In reviewing a ruling on a motion for summary judgment, ‘de novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.’ [Citation.]” (Id. at p. 590.) We decline to independently scour the over 8,000-page record submitted by Claiborne to locate the purported evidence on which she relies.

Claiborne’s legal arguments are also deficient. We need not exhaustively detail those deficiencies—the following examples are sufficiently illustrative. Claiborne’s argument on her substantive claims begins with her Labor Code section 1197.5 cause of action. As to that claim, she asserts that she presented evidence of a race and gender based wage disparity between her and others, and there was thus a triable issue of material fact as to that cause of action. As defendants point out, this was not the theory pleaded in her complaint, and thus cannot serve as a basis for defeating summary adjudication. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253; see also Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661.)

The seventh cause of action of the operative complaint alleged FedEx violated Labor Code section 1197.5 not by paying disparate wages, but “when it unlawfully harassed, discriminated, and retaliated against [Claiborne] for her complaints and engaging in protected activity.” Claiborne’s opening brief does not show that her theory on appeal is one reasonably contemplated by her complaint. (See Doe v. Good Samaritan Hospital, supra, 23 Cal.App.5th at p. 661.) She has therefore failed to meet her burden of demonstrating error. (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 383.)

Claiborne similarly contends she can establish her claim under Labor Code section 1102.5, but her brief discusses only retaliation under FEHA with no discussion of Labor Code section 1102.5. To demonstrate that the trial court erred in summarily adjudicating this cause of action, Claiborne was required to “ ‘present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.’ ” (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.) She did not.

Other portions of her brief simply recite the elements of a particular cause of action, with no citation to the record or explanation of how those legal principles apply to Claiborne’s case. She argues key portions of her FEHA claims are not time-barred, but fails to explain with proper citation to the record why that is so. We need not belabor the point by continuing to identify other problems.

In light of the deficiencies in her briefing, Claiborne has forfeited her argument that the court erred in granting summary judgment. (E.g., Alki Partners, LP v. DB Fund Services, LLC, supra, 4 Cal.App.5th at p. 590; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)

C. Denial of New Trial Motion

After summary judgment was granted, Claiborne filed a motion for new trial. The court struck this motion on the ground a summary judgment motion does not constitute a trial. Although Claiborne claims in passing that the trial court erred in denying her new trial motion, she fails to address her claim under a separate heading, supported by argument and citation to authority. (Cal. Rules of Court, rule 8.204(a)(1).) This failure forfeits any claim of error on appeal regarding the denial of the new trial motion. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

DISPOSITION

The judgment is affirmed. The defendants are awarded their costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.