Case Name: Lydia Ortega v. Board of Trustees of the California State University, et al.
Case No.: 17CV309628

I. Background

This is an employment-discrimination lawsuit brought by plaintiff Lydia Ortega (“Plaintiff”) against defendant the Board of Trustees of the California State University doing business as San Jose State University (“SJSU”) and its employee, defendant Colleen Haight (“Haight”). In brief, Plaintiff served as the Chair of the Department of Economics at SJSU for nearly 15 years and alleges SJSU—acting through dismissed defendant Walter Jacobs, Dean of the College of Social Sciences—wrongfully demoted and replaced her with Haight. Plaintiff alleges Haight thereafter made defamatory statements about her. Plaintiff asserts causes of action against SJSU for wrongful demotion and gender discrimination and against both SJSU and Haight for defamation. Because the Court previously sustained the demurrer to her wrongful demotion claim without leave to amend, the only claims that remain at issue are the second cause of action for discrimination and the third cause of action for defamation.

Currently before the Court is a motion by SJSU and Haight (collectively, “Defendants”) for summary judgment or, alternatively, summary adjudication of the second and third causes of action. Although Plaintiff opposes the motion, she never addresses the merits and rests entirely on her position that the hearing should be continued to give her an opportunity to conduct discovery.

II. Legal Standard

A defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) The moving party bears the initial burden of proving “a cause of action has no merit [by] show[ing] that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the moving party must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he motion for summary judgment shall be granted if 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.” (Code Civ. Proc., § 437c, subd. (c).)

A defendant may move for summary adjudication of a cause of action on the ground it has no merit. (Code Civ. Proc., § 437c, subd. (f)(1).) The motion “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action [ ].” (Code Civ. Proc., § 437c, subd. (f)(1).)

III. Request for Judicial Notice

Defendants request judicial notice of court records, namely the operative pleading, superseded pleadings, and orders on previous pleading challenges. A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, it is unnecessary to take judicial notice of the operative pleading because the Court necessarily must consider that pleading for the purpose of evaluating the motion. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Also, a matter must be relevant to a material issue in order for a court to take judicial notice of it. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) But the superseded pleadings and previous orders, other than the most recent order sustaining the demurrer without leave to amend, are not relevant. And so, they are not proper subjects of judicial notice. Because the Court’s most recent order regarding the sufficiency of claims in the SAC establishes the first cause of action is no longer at issue, that order alone is relevant. For these reasons, Defendants’ request for judicial notice is GRANTED as to the order on the demurrer to the SAC and is otherwise DENIED.

IV. Analysis

A. Defendants’ Initial Burden

1. Second Cause of Action

In the second cause of action for gender discrimination, Plaintiff alleges “gender was a motivating reason for [her] demotion, which was based on [Dean] Jacob’s discriminatory animus toward [her] for her failure to conform to his stereotypical and false beliefs and ideas concerning women in positions of authority.” (SAC, ¶ 86.)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

At the first stage, the plaintiff bears the burden of establishing a prima facie case of discrimination by presenting “evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive.” (Scotch, supra, 173 Cal.App.4th at p. 1004.) A prima facie case of discrimination gives rise to a rebuttable presumption of discrimination that the employer must dispel at the second stage “by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason.” (Ibid.) “If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer’s proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive” at the third stage of the analysis. (Ibid.)

For the purpose of a motion for summary judgment, the order of this analysis is slightly different. (Scotch, supra, 173 Cal.App.4th at p. 1005.) An employer moving for summary judgment must make an initial showing that either the plaintiff cannot establish a prima facie case of discrimination or it had a legitimate, nondiscriminatory reason for its action. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.) SJSU follows both avenues in its motion.

SJSU first argues Plaintiff cannot make out a prima facie case of discrimination because she cannot establish there was a discriminatory motive for removing her from her position as Chair. In support, it presents evidence showing even Plaintiff did not claim her demotion was motivated by discriminatory animus or her gender during its internal grievance process. (Sep. Stat., ¶¶ 27–29, citing Def. Exs. Y–Z.) It also presents evidence showing there was no pattern and practice of gender discrimination based on the high percentage of women in leadership positions, including Plaintiff’s own acknowledgment that there are other strong women leading departments within the College of Social Sciences. (Def. Ex. O, Ortega Dep. at pp. 31:3–33:9.) In Dean Jacobs’s own words:

I have not removed any other female department Chairs in the College during my tenure as Dean. In fact, of the current seven women, I replaced Dr. Ortega with another female economist, Dr. Colleen Haight. I chose four women to replace other female Chairs who were at the end of their terms, and I chose to re-appoint two other women who were re-elected at the end of their terms. In December 2018 an eighth female Chair retired; when she was initially appointed in 2016, I selected her over a male applicant.

(Jacobs Decl., ¶ 15.) SJSU also presents clear and unequivocal statements from Dean Jacobs that Plaintiff’s gender or performance of her gender did not inform his decision to remove her as Chair. (Jacobs Decl., ¶ 16.)

In summary, SJSU presents both direct and circumstantial evidence showing there was no discriminatory motive for its action.

SJSU also argues it had a legitimate, nondiscriminatory reason for demoting Plaintiff. It presents evidence showing subordinates complained of mistreatment by Plaintiff, that it attempted to work with Plaintiff on her communication with staff, and that she failed to take responsibility for her conduct or change her behavior. (Wright Decl., ¶¶ 1–7; Jacobs Decl., ¶¶ 1–12.) Dean Jacobs states: “At the end of February, 2016, I made the decision to remove Dr. Ortega as Chair because I was concerned about her interactions with staff and her inability to take any responsibility for the reported issues.” (Jacobs Decl., ¶ 11.) The evidence presented is sufficient to substantiate SJSU’s argument.

In conclusion, SJSU carries its initial burden of demonstrating Plaintiff’s gender discrimination claim lacks merit because it presents evidence showing she cannot establish a prima facie case of discrimination and it had a legitimate, nondiscriminatory reason for its action.

2. Third Cause of Action

In the third cause of action for defamation, Plaintiff alleges Haight made defamatory statements about the propriety of her use of university funds. The alleged statements consist of emails by Haight about the misuse of funds designated for a specific purpose and the lack of availability of such funds going forward due to past mismanagement.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) Defendants argue Plaintiff cannot establish Haight’s statements were false and unprivileged. They additionally argue they are immune from liability under Government Code section 820.2.

Defendants persuasively argue and present evidence establishing the truth of Haight’s statements about the misuse of funds. The Tower Foundation is SJSU’s “auxiliary organization organized solely to cultivate philanthropy.” (Rohn Decl., ¶ 2.) Donors frequently specify the project or department to which they want to direct their donation; alternatively, academic departments may establish funds and solicit donations for a particular purpose. (Rohn Decl., ¶ 2.) When Haight became Chair, the Chief Operating Officer of the Tower Foundation raised concerns about instances in which funds were used by the Department of Economics in a manner that was inconsistent with the donor’s intent. (Rohn Decl., ¶ 3.) For example, in 2012, Plaintiff authorized the creation of a fund for the specific purpose of supporting K-12 economic education. (Rohn Decl., ¶ 4 & Ex. B.) An audit revealed instances in which Plaintiff and professor Tom Means used funds in a manner inconsistent with a donor’s intent and for purposes other than supporting K-12 economic education. (Rohn Decl., ¶¶ 5–6; Haight Decl., ¶¶ 2–6 & Ex. H.) Plaintiff admitted that she used funds for unauthorized purposes and thereafter destroyed related documentation. (Def. Ex. O, Ortega Dep. at pp. 141–44.) Thus, Defendants present evidence establishing Haight’s allegedly defamatory statements about the misuse of funds were truthful.

Defendants next argue Haight’s statements about the misuse of funds were protected by a number of the privileges set forth in Civil Code section 47. Although Defendants do not substantiate their argument that the statements are privileged under subdivisions (a) and (b) as statements made in the discharge of official duties and the course of an official proceeding, the Court is persuaded the statements are protected by the common interest privilege set forth in subdivision (c) of that statute.

Civil Code section 47, subdivision (c) establishes a privilege for publications made, without malice, to an interested person “(1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” This privilege applies to statements made by an employer to employees about another employee’s conduct in the workplace. (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995–96.)

Defendants present direct and circumstantial evidence establishing Haight’s statements were made without malice. (Haight Decl., ¶ 8; Rohn Decl., ¶ 7.) Defendants also present evidence establishing Haight’s statements were made to other staff and faculty for the purpose of addressing past misuse, stopping misuse in the future, and explaining why funds would no longer be available in response to an inquiry. (Haight Decl., ¶¶ 7–8.) This evidence is sufficient to establish the communications about the misuse of funds were privileged.

In conclusion, Defendants carry their initial burden of showing Plaintiff’s defamation claim lacks merit because she cannot establish Haight’s statements were false and unprivileged.

B. Plaintiff’s Opposition

In Plaintiff’s opposition, she does not address the merits of Defendants’ arguments, present a separate statement setting forth the disputed and undisputed facts, or produce evidence. Instead, she asks the Court to continue the hearing on the motion so she can conduct discovery.

Code of Civil Procedure section 437c, subdivision (h) 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. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

On April 10, 2019, in reliance on this statute, Plaintiff filed an ex parte application to reopen discovery, continue the hearing on the motion for summary judgment, and continue the May-28 trial date. She claimed Haight did not review her personal emails for responsive documents. Defendants opposed Plaintiff’s application stating, among other things, that they conducted a search of Haight’s personal emails and located no responsive documents. The Court denied Plaintiff’s request in its entirety.

On April 12, 2019, Plaintiff concurrently filed an opposition to the motion for summary judgment and a motion to compel. Plaintiff’s opposition and the supporting declaration of her counsel are insufficient to establish a continuance is warranted.

To make the requisite showing, the party opposing the motion must present an affidavit establishing: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Jade Fashion & Co. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 656 [internal citations and quotation marks omitted].) It is not sufficient to generally indicate further discovery or investigation is contemplated.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

Plaintiff again raises the same issue with respect to whether Haight searched her personal emails. But the Court already considered and rejected this argument in connection with Plaintiff’s ex parte application. Moreover, Plaintiff does not actually set forth what facts essential to the opposition will purportedly be discovered through a search of Haight’s personal emails. And so, this argument remains unavailing.

Plaintiff also argues she needs additional time to get “comparator evidence.” (Opp. at p. 8.) Yet, the supporting declaration is devoid of any facts to support this assertion. There is no statement as to what facts exist and why they could not have been obtained sooner. Instead, Plaintiff relies on a generic statement of her counsel that in his “professional opinion, Defendants’ ongoing noncompliance with [d]iscovery creates an unreasonable burden….” (Apps. Decl., ¶ 13.) This is entirely inadequate. Furthermore, Defendants present evidence refuting the notion that they are withholding such evidence. (Paisant Decl., ¶¶ 1–7.)

Ultimately, the fundamental problem with Plaintiff’s opposition is that she focuses on discovery (rather than essential facts) in the absence of a reasoned explanation as to how the discovery is material to her opposition. Indeed, the Court cannot independently conclude the discovery Plaintiff seeks is material to the disposition of the motion given the multitude of arguments Defendants advance that provide separate and independent bases for concluding they carry their initial burden.

In summary, the declaration of Plaintiff’s counsel fails to show facts exist that are essential to opposing Defendants’ motion and a legitimate reason why Plaintiff has been unable to discover those facts in the last two years. Consequently, Plaintiff does not establish a continuance is warranted.

C. Conclusion

Defendants carry their initial burden of establishing Plaintiff’s remaining claims for gender discrimination and defamation lack merit. Plaintiff chose not to address the merits of any of their arguments, and so she does not raise any triable issue of material fact warranting denial of their motion. Additionally, Plaintiff does not substantiate her request for a continuance to conduct discovery. Accordingly, Defendants’ motion for summary judgment is GRANTED.