Calif. Employment Cases Actually Favor Summary Judgement
By Scott Dixler and Sarah Hamill (June 25, 2020)
Summary judgment is a procedural mechanism courts use to cut through
the parties' pleadings to determine whether a trial is necessary to resolve
their dispute.
Under Section 437c, Subdivision (c) of the California Code of Civil
Procedure, a summary judgment motion "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."
Calif ornia courts' attitudes toward summary judgment motions have
shif ted over recent years. Summary judgment was once considered a
disfavored remedy in Calif ornia.
Calif ornia's approach contrasted with that taken by f ederal courts, which
adopted a more permissive view of summary judgment in a trilogy of
cases decided by the U.S. Supreme Court in 1986.[1]
In one of those cases, Celotex Corp. v. Catrett, the court explained that
summary judgment "procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules,"
especially because it "isolate[s] and dispose[s] of f actually unsupported
claims or defenses."[2]
While California courts initially lagged behind their federal counterparts in
removing summary judgment from disf avored status, the Legislature amended the
summary judgment statute in the early 1990s to bring California more in line with the
federal approach.[3]
In 2000, the Calif ornia Supreme Court held in Guz v. Bechtel National Inc., that an
employer is entitled to summary judgment if the evidence does not support a rational
inference of discrimination.[4] The following year, in Aguilar v. Atlantic Richfield Co., the
Calif ornia Supreme Court confirmed that the Legislature intended the amendments to
Calif ornia's summary judgment statute to liberalize the granting of summary judgment
motions.[5]
And the Calif ornia Supreme Court recently reaf f irmed that summary judgment is no longer
disfavored. In Perry v. Blakewell in 2017, the California Supreme Court explained that
summary judgment was once disfavored but that it "is now seen as 'a particularly suitable
means to test the sufficiency' of the plaintiff's or def endant's case."[6]
Nonetheless, even after Guz, Aguilar and Perry, California's courts of appeal still disagree as
to whether summary judgment is an appropriate mechanism for resolving employment
disputes specifically.
On the one hand, several courts of appeal have held that summary judgment is generally
not a suitable vehicle to dispose of employment cases, particularly where — as is of ten the
case — liability turns on the motive of the employer.
Scott Dixler
Sarah Hamill
Prior to Perry, in 2009, Division Two of the First District Court of Appeal in San Francisco
recognized in Nazir v. United Airlines Inc. that summary judgment "is no longer called a
'disfavored remedy,'"[7] but nonetheless reasoned "that many employment cases present
issues of intent, and motive, and hostile working environment, [which are] issues not
determinable on paper." Such cases, the court cautions, "are rarely appropriate for
disposition on summary judgment, however liberalized it be."[8]
Cases decided af ter both Nazir and Perry have f ollowed in Nazir's footsteps. For example, in
Abed v. Western Dental Services Inc., Division One of the First District Court of Appeal
echoed Nazir's reasoning that
although summary judgment is no longer a disf avored procedure, "many employment
cases present issues of intent, and motive, and hostile working environment, issues
not determinable on paper ... [and] rarely appropriate for disposition on summary
judgment, however liberalized it be."[9]
But other appellate courts have gone a dif f erent route, emphasizing the suitability of
summary judgment in employment disputes. In Caldwell v. Paramount Unified School
District, Division Five of the Second District Court of Appeal in Los Angeles stated that
Calif ornia's "summary judgment law, Code of Civil Procedure section 437c, provides a
particularly suitable means to test the sufficiency of the plaintiff's prima f acie case and/or of
the defendant's nondiscriminatory motives for the employment decision."[10]
Similarly, the Third District Court of Appeal in Sacramento recently observed in an
unpublished decision that courts routinely "assess evidence concerning an employer's intent
or motive on summary judgment."[11]
This split of authority regarding the appropriateness of summary judgment in employment
cases risks confounding trial courts and litigants. The risk of conf usion is particularly acute
because the majority of published and precedential appellate cases decided after Perry have
reversed summary judgment granted to an employer on discrimination, harassment,
retaliation, hostile working environment and similar claims.[12]
But once unpublished, and therefore nonprecedential, opinions are considered, the vast
majority of appellate decisions following Perry have affirmed summary judgments f or the
employer on those same claims. We have reviewed approximately 130 appellate decisions
evaluating employment discrimination and retaliation claims under California's Fair
Employment and Housing Act,[13] that were decided af ter Perry, and 99 of those cases
affirmed summary judgment for the employer.
Only 31 reversed summary judgment for the employer. But only two of the 99 cases
affirming summary judgment are published, while nine of the 31 cases reversing summary
judgment are published.
This imbalance between published and unpublished opinions could create the misimpression
that summary judgment remains disfavored in employment cases, as the courts in Nazir
and Abed held. But the facts on the ground are different — in fact, the majority of
employment cases in which an employer won summary judgment in the trial court are
affirmed on appeal.
Ultimately, the First District Court of Appeal's decisions in Nazir and Abed — which state
that summary judgment is disf avored in employment cases — are doctrinal outliers. The
Third District Court of Appeal recently summarized the majority view, albeit in an
unpublished opinion: "[W]hen ... an employer has made a sufficient showing of innocent
motive, and the employee has not placed that showing in material dispute, a court may
grant summary judgment in the employer's f avor."[14]
Because Nazir and Abed are published, precedential decisions, their skeptical view of
summary judgment in employment cases will continue to influence trial courts and litigants.
Ultimately, the Calif ornia Supreme Court may be called on yet again to clarify that summ ary
judgment is not a disfavored remedy in any type of case.
Until the Supreme Court does so, litigants in employment disputes will need to contend with
case law expressing skepticism toward summary judgment in employment cases years after
the Supreme Court took pains to reaf f irm that summary judgment is no longer disfavored.
Scott Dixler is an associate and Sarah Hamill is a fellow at Horvitz & Levy LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views
of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This
article is for general information purposes and is not intended to be and should not be taken
as legal advice.
[1] See Celotex Corp. v. Catrett (1986) 477 U.S. 317 [106 S.Ct. 2548, 91 L.Ed.2d 265]
(Celotex); Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242 [106 S.Ct. 2505, 91 L.Ed.2d
202]; Matsushita Elec. Industrial Co. v. Zenith Radio (1986) 475 U.S. 574 [106 S.Ct. 1348,
89 L.Ed.2d 538]; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-845
(Aguilar) ("In 1986, the United States Supreme Court handed down a trio of decisions"
(Celotex, Anderson, and Matsushita) that liberalized the granting of summary judgment
motions).
[2] Celotex, supra, 477 U.S. at pp. 323-324, 327.
[3] See Aguilar, supra, 25 Cal.4th at p. 849 ("we believe that summary judgment law in this
state now conforms, largely but not completely, to its federal counterpart"); id. at p. 854
("the purpose of the 1992 and 1993 amendments . . . was to liberalize the granting of
motions f or summary judgment").
[4] Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361 (Guz).
[5] Aguilar, supra, 25 Cal.4th at p. 848.
[6] Perry v. Blakewell (2017) 2 Cal.5th 536, 542 (Perry).
[7] Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248 (Nazir).
[8] Id. at p. 286.
[9] Abed v. Western Dental Services Inc. (2018) 23 Cal.App.5th 726, 739 (Abed);
see Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 925 (Cornell) (same); see
also Joohong Kim v. Samsung SDS America, Inc. (2019) 2019 WL 5386835, at p. *5
[nonpub. opn.] (same); Niblett v. County of Los Angeles, (2018) 2018 WL 3599256, at p.
*4 (Niblett) [nonpub. opn.] (same).
[10] Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.
[11] Contreras v. United Airlines, Inc. (2019) 2019 WL 5485223, at p. *1 (Contreras)
[nonpub. opn.].
[12] See Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786; Ortiz v. Dameron
Hospital Assn. (2019) 37 Cal.App.5th 568; Galvan v. Dameron Hospital Assn. (2019) 37
Cal.App.5th 549; Ross v. County of Riverside (2019) 36 Cal.App.5th 580; Mackey v. Board
of Trustees of Calif ornia State University (2019) 31 Cal.App.5th 640; Abed, supra, 23
Cal.App.5th 726; Cornell, supra, 18 Cal.App.5th 908; Light v. Department of Parks &
Recreation (2017) 14 Cal.App.5th 75; Husman v. Toyota Motor Credit Corp. (2017) 12
Cal.App.5th 1168. But see Nakai v. Friendship House Assn. of American Indians, Inc. (2017)
15 Cal.App.5th 32; Featherstone v. Southern California Permanente Medical Group (2017)
10 Cal.App.5th 1150.
[13] Gov. Code, § 12900 et seq.
[14] Contreras, supra, 2019 WL 5485223, at p. *1; see Guz, supra, 24 Cal.4th at p. 361
("an employer is entitled to summary judgment if , considering the employer's innocent
explanation for its actions, the evidence as a whole is insuff icient to permit a rational
inference that the employer's actual motive was discriminatory").
