The opinion
Filed 4/4/25 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MELISSA MANDELL- B326147
BROWN,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
20STCV14662)
v.
ORDER MODIFYING
NOVO NORDISK, INC. et al., OPINION
Defendants and [NO CHANGE IN
Respondents. JUDGMENT]
THE COURT:
It is ordered that the opinion filed on March 6, 2025, is
modified as follows:
On page 8, line 7, delete “deny” and replace with “grant”.
There is no change in the judgment.
BAKER, Acting P. J. MOOR, J. KIM (D.), J.
Filed 3/6/25 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MELISSA MANDELL- B326147
BROWN,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
20STCV14662)
v.
NOVO NORDISK INC. et al.,
Defendants and
Respondents.
APPEAL from judgments of the Superior Court of the
County of Los Angeles, Daniel S. Murphy, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis and Suzanne E.
Rand-Lewis, for Plaintiff and Appellant.
Morgan, Lewis & Bockius, Max Fischer, George S.
Benjamin, and Thomas M. Peterson, for Defendants and
Respondents.
I. INTRODUCTION
Plaintiff Melissa Mandell-Brown appeals from the
summary judgment entered on her FEHA1 and other
employment claims after she did not file an opposition to the
underlying motion. She contends, among other things, that the
trial court erroneously granted the motion without first deciding
whether defendants2 had met their initial burden on the motion.
Because the trial court did not abuse its discretion under
Code of Civil Procedure section 437c (section 437c), subdivision
(b)(3) by granting the motion based on plaintiff’s failure to file the
requisite separate statement, we affirm.
II. BACKGROUND
A. Summary Judgment Motion
On April 15, 2020, plaintiff filed a complaint against
defendants asserting 16 causes of action, including statutory
claims for discrimination, sexual harassment, and retaliation
under FEHA and the Labor Code and common law claims for
breach of contract, wrongful termination, and intentional
infliction of emotional distress.
On May 18, 2022, defendants filed their motion for
summary judgment or, in the alternative, summary adjudication.
1 FEHA is an acronym for the Fair Employment and Housing
Act, Government Code section 12900 et seq.
2 Defendants are Novo Nordisk, Inc. (Nordisk) and Zamaneh
Zamanian (Zamanian).
2
Defendants argued that none of plaintiff’s causes of action
survived summary judgment. The supporting separate
statement included 161 undisputed facts. Defendants also
submitted an attorney declaration authenticating 25 discovery
exhibits and six witness declarations authenticating another 51
exhibits and containing detailed explanations of the non-
discriminatory and non-retaliatory reasons for the elimination of
plaintiff’s job position. The notice of motion set the hearing date
for August 3, 2022, with a trial date then pending for October 4,
2022.
Two days before the hearing on the motion, on August 1,
2022, plaintiff, who had not filed an opposition to the motion,
applied ex parte to continue the hearing. The trial court granted
the application, setting the hearing for September 16, 2022, and
continuing the trial date to November 8, 2022.
On September 14, 2022, plaintiff, who still had not filed her
opposition, again applied ex parte to continue the hearing, and
the trial court granted the application, setting the continued date
for October 14, 2022, and continuing the trial until December 6,
2022.
B. Ruling on Motion
At the October 14, 2022, continued hearing on the motion,
plaintiff did not file an opposition or separate statement, request
a third continuance, or appear at the hearing. The trial court
stated, “[T]he minute order is going to reflect, I received no
opposition. So, based upon no opposition, plaintiff is conceding
that the motion should be granted.” The court added that it had
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reviewed defendants’ motion and asked defense counsel to submit
a written order on the motion.
That same day, the trial court issued a minute order
granting defendants’ motion, and entered a written order finding
“there are no genuine issues as to any material facts alleged in
[p]laintiff’s [c]omplaint;” and, alternatively, “[a]s a matter of law,
[p]laintiff cannot prove the elements of [each of her causes of
action].” The court then incorporated the order into two separate
judgments.
On December 30, 2022, plaintiff timely filed a notice of
appeal from the judgments.
III. DISCUSSION
A. Standard of Review
“A trial court properly grants summary judgment where no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law. ([ ]§ 437c, subd. (c).)”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We
generally review a trial court’s granting of summary judgment de
novo, “considering all of the evidence the parties offered in
connection with the motion (except that which the court properly
excluded) and the uncontradicted inferences the evidence
reasonably supports. [Citation.]” (Ibid.) “The trial court’s
decision to grant a motion for summary judgment because the
opposing party failed to comply with the requirements for a
separate statement, however, is reviewed for an abuse of
discretion.” (Parkview Villas Assn., Inc. v. State Farm Fire &
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Casualty Co. (2005) 133 Cal.App.4th 1197, 1208 (Parkview
Villas).)
B. Section 437c and the Requirements for Separate Statements
Section 437c sets forth the requirements both for making
and opposing a motion for summary judgment or adjudication.
Subdivision (b)(1) sets forth the requirements for making a
motion for summary judgment or adjudication, including the
requirement of a separate statement of undisputed facts and the
advisement that “failure to comply with this requirement of a
separate statement may in the court’s discretion constitute a
sufficient ground for denying the motion.”
The requirements for opposing a motion for summary
judgment or adjudication are set forth in section 437c,
subdivision (b)(3), which provides that: “The opposition papers
shall include a separate statement that responds to each of the
material facts contended by the moving party to be undisputed,
indicating if the opposing party agrees or disagrees that those
facts are undisputed. The statement also shall set forth plainly
and concisely any other material facts the opposing party
contends are disputed. Each material fact contended by the
opposing party to be disputed shall be followed by a reference to
the supporting evidence. Failure to comply with this
requirement of a separate statement may constitute a sufficient
ground, in the court’s discretion, for granting the motion.”
“The requirement of a separate statement from the moving
party and a responding statement from the party opposing
summary judgment serves two functions: to give the parties
notice of the material facts at issue in the motion and to permit
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the trial court to focus on whether those facts are truly
undisputed. (North Coast Business Park v. Nielsen Construction
Co. (1993) 17 Cal.App.4th 22, 31 [(North Coast)].) As explained
. . . in United Community Church v. Garcin (1991) 231
Cal.App.3d 327, 335 . . . , ‘[s]eparate statements are required not
to satisfy a sadistic urge to torment lawyers, but rather to afford
due process to opposing parties and to permit trial courts to
expeditiously review complex motions for . . . summary judgment
to determine quickly and efficiently whether material facts are
disputed.’” (Parkview Villas, supra, 133 Cal.App.4th at p. 1210.)3
Separate statements are “required, not discretionary, on
the part of each party, and the statutory language makes the
failure to comply with this requirement sufficient grounds to
3 “As Witkin describes it, opposition to a summary judgment
‘must contain a separate statement that (1) indicates whether the
opposing party agrees or disagrees with the moving party’s
assertion that specific material facts are undisputed [citation], (2)
sets forth plainly and concisely any other material facts that the
opposing party contends are disputed, and (3) refers to the
supporting evidence for each contention (. . . [§] 437c[, subd.]
(b)(3).’ (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings
Without Trial, § 218, p. 657.) The proper format for the separate
statement is illustrated at California Rules of Court, rule
3.1350(f). And the Witkin passage concludes—just as the
summary judgment statute expressly provides—this way:
‘Failure to comply with this requirement of a separate statement
may constitute a sufficient ground, in the court’s discretion, for
granting the motion.’ ([ ]§ 437c, subd. (b)(3); see Oldcastle
Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170
Cal.App.4th 554, 568; Batarse v. Service Employees Internat.
Union, Local 1000 (2012) 209 Cal.App.4th 820, 831–833
[(Batarse)].)” (Rush v. White Corp. (2017) 13 Cal.App.5th 1086,
1097.)
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grant the motion.” (Whitehead v. Habig (2008) 163 Cal.App.4th
896, 902.)
“When the opposing party fails to file a separate responsive
statement the trial court is presented with two choices. It can
grant the motion for summary judgment based on the absence of
the separate statement or it can continue the motion or otherwise
permit the filing of a proper separate statement. [Citations.]
Whichever choice the court makes must be based on the
circumstances before the court. ‘A trial court’s exercise of
discretion will be upheld if it is based on a “reasoned judgment”
and complies with the “. . . legal principles and policies
appropriate to the particular matter at issue.”’ [Citation.]”
(Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89,
94 (Security Pacific).)
C. Analysis
Plaintiff contends the trial court erred when it granted
summary judgment because, in plaintiff’s view, “[e]ven absent
any opposition by [plaintiff], the [t]rial [c]ourt was required to
review the evidence and make a determination as to whether
[defendants] had met their burden of proof.” Even assuming, for
purposes of this opinion, that the court granted the motion based
solely on the absence of an opposition, without reviewing the
supporting evidence in light of the elements of the specific claims
asserted, we reject plaintiff’s contention. (See North Coast,
supra, 17 Cal.App.4th at pp. 31–32 [rejecting party’s argument
“that its failure to comply with the required separate statement
[was] irrelevant because it was [moving party’s] burden to show
summary judgment was appropriate”].) Section 437c, subdivision
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(b)(3) expressly vests trial courts with discretion to grant motions
for summary judgment on the ground that the party opposing
summary judgment has failed to submit a separate statement.
Thus, if a plaintiff opposing summary judgment fails to file a
separate statement, and the trial court reviews the moving
papers and concludes the motion is not deficient on its face, it has
discretion under subdivision (b)(3) to deny the motion, without
first undertaking a detailed analysis of the supporting evidence
to determine if a prima facie showing has been made as to one or
more of the elements of each claim.4
This was not a case involving “a single, simple issue with
minimal evidentiary support” such that the trial court may have
had an obligation to “consider the merits unaccompanied by a
separate statement.” (Security Pacific, supra, 4 Cal.App.4th at
p. 94.) To the contrary, plaintiff’s complaint asserted 16 causes of
action, including FEHA claims for religious and disability
discrimination, sexual harassment, retaliation, failure to
accommodate, failure to engage in an interactive process, and
violation of the whistleblower protections of Labor Code section
1102.5. And, in their motion and separate statement, defendants
4 We therefore disagree with court of appeal decisions such
as Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, to
the extent they mandate that a trial court conduct a prima facie
review of the moving party’s evidence despite the absence of an
opposing separate statement. (Id. at p. 1086.) Further, because
the trial court here was considering a defense motion for
summary judgment, our conclusion concerning the court’s
discretion under section 437c, subdivision (b)(3) is limited to such
motions. We express no opinion as to the scope of a trial court’s
discretion under subdivision (b)(3) when considering a plaintiff’s
motion for affirmative relief under section 437c.
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addressed one or more elements of each claim supported by
testimonial and documentary evidence. Given the complexity of
the motion, the trial court here was entitled to the benefit of an
opposing separate statement, as required under the statute, to
aid in its analysis of the multiple causes of action and their
elements.
Further, the trial court here granted plaintiff two
continuances to file her opposition, which required two
continuances of the trial date. Notwithstanding the additional
time the court afforded her to file opposition papers, plaintiff
failed to submit points and authorities addressing defendants’
evidence as it related to the elements of her claims, any
declarations presenting disputed factual issues, or a separate
statement to assist the court in parsing which of the 161 facts
asserted and supported by defendants’ evidence she disputed.
Nor did plaintiff or counsel appear at the continued hearing,
make any effort to excuse her failure to comply with the
requirements of section 437c, or request another continuance to
allow her to comply. (Compare Parkview Villas, supra, 133
Cal.App.4th at p. 1210 [where the party opposing summary
judgment filed an inadequate, but not “wholly deficient,” separate
statement, trial court abused its discretion in granting summary
judgment rather than allowing the party an opportunity to cure
the defect].)
Under these circumstances, we conclude the trial court did
not abuse its discretion in granting the motion pursuant to
section 437c, subdivision (b)(3).
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IV. DISPOSITION
The judgments are affirmed. No costs are awarded on
appeal pursuant to Government Code section 12965, subdivision
(c)(6).
KIM (D.), J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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