# Serri v. Santa Clara University

> California Court of Appeal · May 28, 2014 · 226 Cal. App. 4th 830

URL: https://www.frixlaw.com/law-library/cases/2676057

## Case

- **Full name:** CONCHITA FRANCO SERRI, Plaintiff and Appellant, v. SANTA CLARA UNIVERSITY Et Al., Defendants and Respondents
- **Court:** California Court of Appeal
- **Decided:** May 28, 2014
- **Citations:** 226 Cal. App. 4th 830; 172 Cal. Rptr. 3d 732; 2014 Cal. App. LEXIS 467; 2014 WL 2213180
- **Precedential status:** Published
- **Opinion:** Opinion by Marquez
- **Judges:** Marquez
- **Cited by:** 246 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Filed 5/28/14 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CONCHITA FRANCO SERRI, H037534
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 107 CV 088296)

v.

SANTA CLARA UNIVERSITY ET AL.,

Defendants and Respondents.

Plaintiff and appellant Conchita Franco Serri brought this action against her
former employer (defendant and respondent Santa Clara University (the University)) and
other individually named defendants after the University terminated her employment.
Serri had worked as the University’s Director of Affirmative Action since 1992. The
University terminated her employment in 2007 because she failed to produce Affirmative
Action Plans for three consecutive years, even though her job required that she produce
an Affirmative Action Plan annually. The University also terminated her employment
because she made misrepresentations about the Plans that she had failed to prepare.
Notwithstanding Serri’s failure to produce the required Plans—and the
misrepresentations she made about the nonexistant Plans—Seri filed a complaint alleging
that she was wrongfully discharged from her employment based on her race and ethnic
origin. Her complaint also contained causes of action for breach of her employment
contract, retaliation and harassment in violation of the California Fair Employment and

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of parts I., II., IV.G., IV.I., IV.J., and IV.K.
of the Discussion.
Housing Act, violation of the federal Equal Pay Act, defamation, intentional and
negligent infliction of emotional distress, and interference with prospective economic
advantage. The defendants moved for summary judgment, or in the alternative, summary
adjudication of each of Serri’s causes of action.
We are asked to determine whether an employee who is terminated for failing to
perform an important job function can avoid summary judgment by arguing, based on
expert evidence obtained for the purpose of opposing a motion for summary judgment or
summary adjudication, years after the employee’s termination, that the failure to perform
did not and would not result in any adverse consequences to the employer. We hold that
after-acquired expert evidence that there were no adverse consequences from an
employee’s failure to perform does not create a triable issue of fact on the question
whether the employee failed to perform his or her job duties and thus has limited
relevance, if any, to the question of discrimination.
In this case, expert evidence that the failure of performance did not harm the
University, acquired years after Serri was terminated, did not create a triable issue of
material fact on the question whether the University’s stated reasons for terminating Serri
were untrue or pretextual such that a reasonable trier of fact could conclude that the
employer engaged in discrimination. Before she was terminated, Serri told the University
her failure to prepare an Affirmative Action Plan could have adverse consequences,
including the loss of federal grants. That the University ultimately suffered no adverse
consequences did not create a triable issue on the questions whether the University had a
legitimate, nondiscriminatory reason to terminate her employment or whether its reasons
for doing so were untrue or pretextual. We also reject Serri’s other contentions.
Accordingly, we will affirm the summary judgment.

2
FACTS

For almost 15 years, from the latter half of 1992 until March 2007, Serri was
employed by the University as its Director of Affirmative Action. Her duties included
handling and either mediating or investigating complaints filed by faculty, students, and
staff under the University’s anti-discrimination and anti-harassment policy, which the
University refers to as “Policy 311.” Serri’s duties also included preparing the
University’s annual Affirmative Action Plan (sometimes AAP or Plan)1 and providing
sexual harassment training to University staff. Serri testified in deposition that since the
University was a federal contractor, federal regulations required the University to prepare
an annual AAP. In a memo she wrote in November 2005, Serri described the AAP as
“pivotal and essential for us for obtaining and retaining federal grants.” Serri, who is
Puerto Rican, was 54 years old when the University terminated her employment.
At all times relevant to this case, defendant Father Paul Locatelli2 was the
President of the University, defendant Robert Warren was the University’s Vice President
for Administration and Finance, and defendant Molly McDonald was the University’s
Assistant Vice President of Human Resources. McDonald reported to Warren, and
Warren reported directly to Father Locatelli. Until April 2006, Serri’s also reported
directly to Father Locatelli. McDonald supervised Serri from April 2006 until Serri’s
termination in March 2007.
Defendants John Ottoboni and Julie Veit are attorneys. Veit is Ottoboni’s
daughter. Before 2007, they both worked for a law firm that served as outside counsel to
the University. In the fall of 2006, the University hired Ottoboni as its in-house general
1
The document required by federal regulations was originally called the
“Affirmative Action Plan.” The name was later changed to “Affirmative Action
Program.” We shall use the phrase “Affirmative Action Plan” or the shortened forms
“AAP” or “Plan” to refer to the report at issue, since that is how it is described in most of
the record.
2
Father Locatelli passed away on July 12, 2010.

3
counsel, effective January 1, 2007. In late January 2007, Veit started working for the
University as an in-house legal associate to the human resources department. Veit
reported to McDonald, not Ottoboni.

The University’s Affirmative Action Plan

Serri testified in deposition that there were three major components to the
University’s Affirmative Action Plan. The first component had two parts: (1) a narrative
report that Serri prepared, and (2) several statistical analyses that her assistant Linda
Jocewicz prepared based on data provided by the human resources department. The AAP
narrative contained the University’s “critical self analysis” and discussed specific topics
as required by the Code of Federal Regulations. The statistical analyses part included a
workforce analysis, a job group analysis, and an availability analysis (“an estimate of the
number of qualified minorities and women available for employment” in specific job
groups). The other two components of the AAP were the “applicant flow” and the “glass
ceiling part,” which Serri testified she never prepared because she was never given the
data she needed to complete those components.

Events in 2003 and 2004

McDonald started working for the University in May 2003. Shortly thereafter,
Serri told McDonald that she had had difficulty obtaining the data she needed to complete
the statistical portion of the AAP’s from McDonald’s predecessor. McDonald promised
her full cooperation and encouraged Serri to contact her if she encountered any problems
with the human resources department.
Serri reported directly to Father Locatelli for many years. In about 2003, Father
Locatelli began considering changing their reporting relationship and having Serri report
to McDonald instead. Serri objected and wrote him a letter in December 2003, in which
she explained why she did not believe it would be a good idea to make the Affirmative

4
Action Office part of human resources. In June 2004, Father Locatelli questioned Serri’s
role in investigating faculty complaints. After consulting with Ottoboni and Veit (who
were then outside counsel), Father Locatelli advised Serri that the University needed to
make changes in policies, procedures, and reporting relationships related to the
Affirmative Action Office, but no such management changes were made in 2004 or
2005.3

Serri’s Wage Complaint

On November 7, 2005, Serri sent Father Locatelli a letter in which she complained
about an “unjustifiable salary disparity” between her salary and that of Charles
Ambelang, a male employee in the human resources department whose job functions
Serri alleged were comparable to her own. Serri said she had informed McDonald of the
salary disparity in March 2005. Her letter asked Father Locatelli to “remedy this inequity
. . . without further delay.”

April 6, 2006 Meeting Between Serri, Father Locatelli, McDonald, and Veit

In 2006, Father Locatelli ultimately determined that he did not have sufficient time
to manage Serri’s department and decided that Serri would report directly to McDonald,
but would provide him with monthly updates regarding her activities, thus creating what
the parties referred to as a “dotted-line” reporting relationship between Serri and Father
Locatelli.
Father Locatelli met with McDonald and Serri on April 6, 2006, to discuss the
reporting changes and other issues. At that meeting, Father Locatelli reassured Serri that
the change in their reporting relationship was not a demotion. He noted that other
reporting changes were also taking place.

3
In October 2004, Father Locatelli told Warren he wanted McDonald to take over
management of the Affirmative Action Office, but no such change was made at that time.

5
Shortly after the April 6, 2006 meeting, Serri took a medical leave of absence from
the University to have surgery. Serri returned from her medical leave on June 20, 2006.
Shortly thereafter, the University offered to make an equity adjustment to her salary,
increasing it from $104,000 to $118,350 per year retroactive to March 1, 2005, the date
Serri first informed McDonald of the alleged salary disparity. The University also
offered Serri a 3.5 percent merit increase for the 2006-2007 academic year, which
brought her salary up to $122,492 per year effective July 1, 2006. At that time, the
University was in the process of having an outside consultant, Mercer Human Resources
Consulting (Mercer), review the salaries of certain University employees, including
Serri’s salary. As part of that process, McDonald asked Serri to prepare a written
description of her job for Mercer, which Serri completed on June 21, 2006. The
University told Serri that if Mercer determined that an additional salary increase was
warranted, that increase would be made retroactive as well.

Serri’s June 2006 Discrimination Claim

On June 21, 2006, the same day the University offered to make an equity
adjustment to Serri’s salary, Serri made a formal written complaint against Father
Locatelli and Warren under Policy 311. Serri’s complaint against Father Locatelli
alleged gender discrimination because she made $20,000 per year less than Ambelang; 4
she also claimed the wage disparity was a violation of the federal Equal Pay Act. Serri’s
complaint against Warren alleged that she felt threatened by him when he interfered with
her investigation of a sexual harassment claim involving two employees of the Facilities
Department in 2005.

4
Policy 311 defines unlawful discrimination in part as conduct the denies “ ‘equal
opportunities, privileges, or benefits to individuals based upon race, color, national
origin, ancestry, sex . . . .’ ”

6
Since it would have been inappropriate for Serri to investigate her own claims, the
University hired an independent investigator for these claims. University representatives
asked Ottoboni, who was then outside counsel for the University, for a recommendation.
Ottoboni recommended Steven Manchester, an attorney with over 35 years of experience.
The University then hired Manchester to investigate Serri’s claims.
On July 30, 2006, Manchester issued a written report in which he found that
Serri’s claims were without merit and that neither Father Locatelli nor Warren had
violated Policy 311. Serri appealed Manchester’s findings to the University’s Board of
Trustees (Board). The Board held a hearing on September 12, 2006. Serri, who was
represented by counsel, presented documents and argument in support of her appeal. The
Board affirmed Manchester’s findings.

Serri’s Working Relationship with Veit

As Assistant Vice President for Human Resources, McDonald regularly worked
with outside counsel, including Veit. From time to time Veit, who practiced employment
law, gave the University legal advice on matters that Serri handled, including the
investigation of complaints and sexual harassment training. Veit often attended
McDonald’s meetings with Serri. On September 26, 2006, McDonald sent Serri an e-
mail suggesting that Veit attend their “regularly scheduled” biweekly meetings, to which
Serri responded, “Brilliant idea, Molly! Let’s do it.”

Serri Discloses Her Failure to Prepare Affirmative Action Plans

Father Locatelli asked to meet with McDonald and Serri in mid-October to discuss
Serri’s cases. To prepare for the meeting, Father Locatelli asked Serri to provide him
with a written report by October 10, 2006, regarding the status of the cases she had
handled between April and September 2006. The meeting was ultimately scheduled for
October 13, 2006.

7
About a week before the meeting, on October 5, 2006, Serri filed discrimination
claims against the University with the California Department of Fair Employment and
Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC).
The claims alleged (1) discrimination on the basis of sex, race, and national origin; and
(2) retaliation for complaining about discrimination and a violation of the Equal Pay Act.
On October 10, 2006, at one of her regular meetings with McDonald and Veit,
Serri told McDonald that the University “had not had a defensible Affirmative Action
Plan” for several years. Serri was upset that her assistant, Linda Jocewicz, had not been
trained on certain computer software so she could access human resources data she
needed to prepare the statistical analyses part of the AAP. Serri stated that during the
entire time that she was the Director of Affirmative Action, she never received the data
she needed to complete the AAP’s. This was the first McDonald had heard of this and
she immediately became concerned. McDonald agreed to provide Serri with whatever
data she needed and Serri agreed to provide Veit with a copy of the most recent AAP.
After Serri’s disclosure, Warren became concerned that the University could lose certain
government funding because it did not have a defensible AAP.
Serri and Father Locatelli exchanged a series of e-mails in preparation for their
October 13, 2006 meeting. On October 12, 2006, Father Locatelli told Serri their
meeting would include a review of her cases as of September 30, as well as the “current
Affirmative Action [P]lan.” He asked her to “bring the current Affirmative Action [P]lan
and all plans for the last 10 years” to the meeting.
Serri responded via e-mail, stating in part, “In the spirit of open communication I
must say that I find the tone of your emails hostile.” She also stated, “To this date, I have
never received the completed data we need to complete the Affirmative Action Plan, even
though we have asked for it in the past numerous times. I am working on the current plan
for this year. I will bring a draft and last year’s. The industry standard is to destroy the
AAP[’]s that are over two years old.” Father Locatelli responded, “Please let me clarify

8
so there is no misunderstanding. I am only trying to get the material that you promised to
send me as well as information that I thought was readily available to you. My purpose is
to be as prepared as possible in order to have a fruitful and effective meeting. [¶] It is
unclear how my email could be read as ‘hostile’ and I am looking forward to a productive
meeting tomorrow.”
At the meeting on October 13, 2006, Serri produced two documents that were
labeled “DRAFT . . . Affirmative Action Plan” covering the periods “February 2006
through January, [sic] 2007” and “November 1, 2006 through October 31, 2007.”5 The
draft AAP’s that Serri produced in October 2006 were 25-page narrative reports that
documented the University’s “policy of sustaining equal employment opportunity and
implementing affirmative action efforts in conformity with” federal statutes and
executive orders. Both documents contained multiple typographical and grammatical
errors, incomplete sentences, and other errors. The University later learned that Serri
created both draft AAP’s the day before the October 13, 2006 meeting. In deposition,
Serri admitted that she prepared the two draft AAP’s the day before the meeting and that
she did not inform either Father Locatelli or McDonald that she had done so.
At the October 13, 2006 meeting, Serri said: (1) she was not an expert in AAP’s;
(2) she needed to hire a consultant to help prepare the AAP’s because the applicable
regulations had changed; and (3) her assistant had failed to obtain the data she needed to
prepare the statistical analyses part of the AAP from human resources. Serri repeated her

5
There are discrepancies in the dates on both draft Plans. The cover page for the
first draft AAP stated that it covered the period “March 1, 2006-February 2, 2006”
(which appears to contain a typographical error), while the text of the first plan stated that
it covered the period “February 2006 through January, [sic] 2007.” The cover page for
the second draft AAP contained the dates “November 1, 2006-October 31, 2007,” while
the text of the second Plan stated that it covered the period “October 1, 2006 through
September 30, 2007.” The time frames covered by the two Plans are not sequential and
do overlap since both Plans cover the three- or four-month period from October or
November 2006 through January 2007.

9
previous statement that the University had no current, defensible AAP; she also said the
University was likely to be audited by the federal government and recommended the
University hire Anna Maly, an AAP consultant, at a cost of $9,000, to revamp its AAP
and to create a template for future AAP’s. Prior to this meeting, Serri had never told
McDonald she did not feel competent to prepare the AAP or that she need a consultant to
help her prepare it.
In deposition, Serri testified that she started preparing AAP’s in 1992 and that she
prepared an AAP each year between 1992 and 2000.6 Serri also testified that the last
time she prepared the narrative portion of the AAP prior to October 2006 was in 2002
and that Jocewicz had prepared the statistical analyses for the AAP in 2005 and 2006, but
not in 2004.
Father Locatelli, Warren, McDonald, Ottoboni, and Veit met on October 18, 2006,
to discuss the problems related to the University’s AAP. They decided that McDonald
would take over the responsibility of completing the 2006 AAP. On October 19, 2006,
McDonald sent Serri an e-mail informing her that she (McDonald) would be
“facilitate[ing] the coordination of this year’s Affirmative Action Plan” in light of Serri’s
statements that (1) the AAP was “incomplete and indefensible,” (2) she was unable to
“produce a defensible plan without hiring a consultant,” and (3) it was likely the
University would be audited. The reassignment of duties was also based on McDonald’s
review of the draft plans Serri had prepared and the fact that the University had not had
an AAP since 2003. McDonald asked Serri to provide the exhibits and the statistical
analyses that were referenced in the draft AAP’s. She also informed Serri that she was
asking University counsel to review the AAP.

6
Serri testified that the University was not a federal contractor in 1992, that there
was no requirement that it have an AAP at that time, that she learned that the University
had become a federal contractor around 2000, and that she prepared the AAP’s
voluntarily prior to 2000.

10
Serri objected to the reassignment of her duties relating to the 2006 AAP in an e-
mail dated October 20, 2006, stating that the preparation of the AAP was “one of those
roles that define [her] position” and that she felt “compelled to protest this act to the
EEOC as an act of retaliation.” She stated that (1) regulations governing AAP’s had
changed; (2) since 2004, she has needed to hire a consultant to prepare an AAP that was
defensible and complete in light of the new regulations; (3) Father Locatelli never gave
her permission to hire a consultant; and (4) McDonald’s predecessor had denied her
“essential data” and computer training needed to complete past AAP’s. Serri also blamed
the problem with the AAP’s on Father Locatelli’s “unwillingness to communicate” with
and supervise her for six years.

Serri’s October 2006 Claims

On October 20, 2006, Serri lodged a second complaint under Policy 311, in which
she claimed that McDonald’s assumption of responsibility for the AAP was an act of
retaliation for Serri’s prior Policy 311 and EEOC claims. On or about October 24, 2006,
Serri filed a second claim against the University with the DFEH, which was forwarded to
the EEOC, in which she claimed that taking away her “essential job function” of
preparing the AAP was “a demotion” that was retaliatory in nature.
The University once again asked Ottoboni to recommend someone to investigate
Serri’s second Policy 311 claim. Since Manchester had found against Serri on her first
claim and Serri had criticized his investigation, Ottoboni recommended the University
retain Mark Fredkin, an attorney with over 25 years experience, to investigate Serri’s
second claim. The University hired Fredkin. Linda MacLeod, an attorney at Fredkin’s
firm, assisted with the investigation.
On October 23, 2006, Serri told McDonald that she no longer wanted Veit
attending their meetings. But McDonald decided that Veit would continue to attend their
meetings so they could discuss Serri’s cases and projects with Veit present. She also

11
believed “it was important to have another person present for the conversations with Ms.
Serri in light of past disagreements about what had transpired in earlier discussions.”
Veit attended only two or three more of Serri’s meetings with McDonald, all in the fall of
2006. On November 13, 2006, Serri added an allegation to her second Policy 311 claim
that Veit’s presence at her meetings with McDonald was an act of retaliation against her.

Ottoboni and Veit Obtain Employment With the University

In 2006, the University decided to hire a full-time, in-house general counsel and
offered Ottoboni the job. The University announced Ottoboni’s appointment as general
counsel in the fall of 2006 and he started working directly for the University on January
1, 2007.
In the latter part of 2006, McDonald recommended the University hire an in-house
attorney for the human resources department who would report directly to McDonald.
Warren approved and the University advertised the position in December 2006. Veit
applied and was offered the job; she started working directly for the University in late
January 2007. Serri’s duties did not change after Veit was hired. Serri’s job and Veit’s
job were and remained separate and distinct.

Results of Second Investigation

On January 17, 2007, Fredkin and MacLeod issued a report in which they
concluded that Serri had failed to meet her burden of proof on her retaliation claims.
Serri appealed the decision to the Board and on February 13, 2007, the Board affirmed
the investigators’ findings.

The University Terminated Serri’s Employment

In October 2006, Warren recognized the seriousness of Serri’s failure to complete
the AAP’s. He believed preparation of the AAP’s was a “critical aspect” of Serri’s job

12
and was concerned that the University could lose certain government funding because it
did not have an AAP in place. Notwithstanding his immediate concerns, Warren decided
not to make any decisions regarding Serri’s employment until after the Policy 311
investigation and appeal were completed.
After the appeal of Serri’s second claim was completed, Warren decided to
terminate Serri. He made the decision himself instead of deferring to McDonald because
he believed “Serri’s misconduct to be sufficiently grave as to require [his] personal
intervention.” On March 7, 2007, Warren hand-delivered a letter to Serri, advising her
that she was being terminated for three reasons: (1) her “failure to prepare, develop and
implement the University Affirmative Action Plan for years 2003-2004, 2004-2005, and
2005-2006”; (2) her “failure to disclose to [her] supervisors the nonexistence of the
University Affirmative Action Plans” for those years; and (3) her “misrepresentations
related to the Affirmative Action Plans.” Warren considered these acts to be “gross
misconduct sufficient to warrant [Serri’s] immediate termination” without corrective
action. When he delivered the letter, Warren was accompanied by Ingrid Williams, an
employee of the human resources department, who helped Serri gather her personal
belongings.
After the University terminated Serri, it hired Deborah Hirsch, a woman from
outside the University who was the same age as Serri, as the Director of Affirmative
Action. Hirsch started working for the University in October 2007.

Declaration of Linda Campbell

In declarations, Linda Campbell, who had been the University’s Director of
Sponsored Projects for 12 years, stated that virtually all grant and contract applications
the University submits to federal, local and state governments require the University to
certify certain things, including that the University has completed its annual AAP. Prior
to 2002, Serri personally signed the AAP certifications. But after Serri’s office was

13
moved to another building in 2002, Campbell and Serri agreed that Campbell would sign
the certifications. Campbell assumed Serri would notify her promptly if there was any
reason she could not sign the certification forms. Campbell talked to Serri about the
certifications two or three times a year; they communicated about them via e-mail and
Campbell occasionally provided Serri with copies of documents the University was being
asked to sign. From 2003 until 2006, the University certified on multiple occasions that
it was in compliance with regulations requiring AAP’s. As examples, Campbell attached
copies of two grant applications the University submitted to two different federal
agencies in December 2005 and March 2006, in which the University certified that it had
developed an AAP as required by the rules and regulations of the Secretary of Labor.
Both applications were signed by Don Dodson, the University’s Vice Provost for
Academic Affairs. One application requested grant funding in excess of $15 million.
Campbell declared that during the relevant time frame, Serri never told her the University
did not have an AAP.
On September 21, 2006, Campbell sent Serri an e-mail in which she wrote that the
City of San José wanted a copy of the University’s AAP “as part of our award paperwork
for this year.” Campbell asked Serri whether the University released its AAP. Serri
responded that the University could not release its AAP because “it has proprietary,
sensitive information that can compromise the University in case we get sued by job
applicants. . . . We have never released it.” Serri did not tell Campbell the University
did not have an AAP and had not had one for three years. Serri offered to send Campbell
“a summarized, sanitized version” of the AAP, but stated that “it is still not a good idea.”
In deposition, Serri testified that the “sanitized version” she mentioned in her e-mail was
the narrative summary, like the draft AAP’s she prepared in October 2006. Serri also
testified that she knew people in the grants office were certifying that the University had
an APP when in fact no AAP had existed for three years.

14
PROCEDURAL HISTORY

Serri filed her original complaint on June 20, 2007. The operative pleading is
Serri’s fourth amended complaint, which was filed in July 2008, after the trial court
sustained Defendants’ demurrers to previous complaints with leave to amend.
The fourth amended complaint (hereafter sometimes “complaint”) alleges causes
of action against the University for employment discrimination, tortious discharge,
violation of the California Equal Pay Act (Lab. Code, § 1197.5), breach of an implied
contract of continued employment, bad faith, and retaliation in violation of the FEHA
(Fair Employment and Housing Act; Gov. Code, § 12940, subd. (h)). The complaint
asserts causes of action against the University, Father Locatelli, McDonald, and Warren
for defamation, intentional infliction of emotional distress, and negligent infliction of
emotional distress. The complaint includes a cause of action for harassment (Gov. Code,
§ 12940, subd. (j)) against the University, Father Locatelli, McDonald, and Veit. Finally,
the complaint alleges a cause of action against Ottoboni and Veit for interference with
prospective economic advantage.
The Defendants were divided into two groups represented by two separate
lawyers: (1) the University and Father Locatelli were represented by attorney Allen
Ruby; and (2) Warren, McDonald, Ottoboni, and Veit were represented by attorney
Sonya Winner. We shall hereafter refer to Warren, McDonald, Ottoboni, and Veit
collectively as the “Individual Defendants” and to all defendants collectively as
“Defendants.” Defendants answered the fourth amended complaint in August 2008.
On April 12, 2011, the court set the case for trial on September 6, 2011. On May
17, 2011, Warren, McDonald, Ottoboni, and Veit each filed and served a motion for
summary judgment or, in the alternative, summary adjudication. The following day
(May 18, 2011), the University and Father Locatelli filed and served their joint motion

15
for summary judgment or summary adjudication in the alternative. All five motions were
scheduled for hearing on August 2, 2011.
On July 8, 2011, Serri made an ex parte application to continue both the hearing
on the motions for summary judgment and the trial date for four weeks so she could
complete additional discovery she needed to oppose the motions. After giving the
Defendants an opportunity to file written opposition and holding a hearing on Serri’s
application, the court granted Serri’s requests in part. The court continued the hearing on
the motions for summary judgment from August 2, 2011, to August 25, 2011; extended
the deadline for Serri to file opposition to the motions from July 19, 2011, to August 11,
2011; but denied Serri’s request to continue the trial date.
On August 11, 2011, Serri filed her opposition to the motions for summary
judgment, which consisted of a single memorandum of points and authorities, five
separate statements (one in response to each of Defendants’ five separate statements), the
declarations of her counsel and of John Fox (an expert on AAP’s), and 408 exhibits.
Although Serri’s evidence included excerpts from her deposition, she did not file a
declaration in support of her opposition. Regarding the employment discrimination
claims, Serri asserted that the stated reasons for her termination were false and that there
was evidence of discriminatory animus.
On page one of her memorandum of points and authorities in opposition to the
motions, Serri requested a further continuance of the summary judgment motions “to
obtain the essential remaining discovery she needs to oppose [the] motions.” Serri stated
that she needed to depose Linda Campbell and a person most knowledgeable from the
University, asserted that the University had refused to produce those witnesses, and
argued that she could not “adequately oppose the motions without that discovery.”
On August 19, 2011, Defendants filed papers in reply to Serri’s opposition to the
motions for summary judgment, including memoranda of points and authorities, separate
statements in reply to Serri’s opposition, and objections to Serri’s evidence. Defendants

16
also opposed Serri’s request for a second continuance, arguing that Serri had failed to
comply with the procedural requirements of Code of Civil Procedure section 437c,
subdivision (h),7 since she had not submitted any affidavits or declarations supporting her
continuance request and had not submitted any evidence that the Defendants had refused
to produce any witnesses.
On August 23, 2011, two days before the hearing, Serri’s counsel submitted
additional points and authorities and a declaration supporting his second request for a
continuance.
On August 24, 2011, the day before the hearing on the motions for summary
judgment, Serri filed written responses to the Defendants’ objections to her evidence.
Later that day, the court issued a written tentative ruling sustaining Defendants’
objections to Serri’s evidence and granting each of the motions for summary judgment.
Serri objected to the tentative ruling and requested oral argument.
On August 25, 2011, at the hearing on the motions for summary judgment, Serri
filed an additional 37 pages of written objections to Defendants’ evidence. She also filed
a written statement of disqualification objecting to having Judge Mark Pierce hear the
motions for summary judgment pursuant to section 170.3, on the grounds that he had
failed to disclose that: (1) he was a graduate of the University, and (2) he had made
financial contributions to the University. After conducting a hearing on Serri’s
disqualification request, the court denied it as untimely and then heard argument on the
motions for summary judgment.
On August 30, 2011, the court issued its order on the motions for summary
judgment. The court denied Serri’s second request for a continuance to do additional
discovery, overruled Serri’s objections to Defendants’ evidence, sustained Defendants’
objections to Serri’s evidence, and granted each of the motions for summary judgment.

7
All further unspecified statutory references are to the Code of Civil Procedure.

17
Although it sustained Defendants’ objections to Serri’s evidence, the court stated:
“Regardless, after a comprehensive review of all of the evidence submitted by Plaintiff,
the Court finds the even if it found Plaintiff’s evidence to be admissible, it would not
impact and/or change any of the rulings” on the motions for summary judgment.
On August 30, 2011, the court entered judgment in favor of Defendants,
determined that Defendants were prevailing parties, and awarded Defendants their costs
of suit. On September 2, 2011, the court issued a written order striking Serri’s statement
of disqualification.
On September 12, 2011, Serri filed a petition for writ of mandate in this court, in
which she requested an order directing the trial court to vacate its order striking her
statement of disqualification. That same day, Serri also filed a notice of motion for new
trial. Defendants opposed the writ petition and the motion for new trial. Defendants also
filed a memorandum of costs, which Serri challenged with a motion to tax. In November
2011, the trial court denied Serri’s motion to tax, awarded Defendants $50,723.41 in
pretrial costs, and denied Serri’s new trial motion. Later, this court denied Serri’s
petition for writ of mandate.

DISCUSSION

Serri challenges the order granting summary judgment on procedural grounds and
on the merits. Procedurally, she argues that the court erred when it: (1) denied her
section 170.3 motion to disqualify Judge Pierce; (2) denied her second motion for a
continuance of the hearing on the summary judgment motions; and (3) sustained the
defendants’ objections to her evidence. On the merits, Serri challenges the summary
adjudication of each of her causes of action and, thus, the orders granting summary
judgment. We begin by addressing Serri’s procedural challenges.

18
I. The Court’s Order on Serri’s Statement of Disqualification is Not Appealable

At the start of the hearing on the motions for summary judgment, Serri filed a
statement of disqualification (Statement) challenging Judge Pierce on the ground that “a
person aware of the facts might reasonably entertain a doubt that Judge Pierce would be
able to be impartial.” (§ 170.1, subd. (a)(6)(A)(iii).) Such statements must “be presented
at the earliest practicable opportunity after discovery of the facts constituting the ground
for disqualification.” (§ 170.3, subd. (c)(1).) In declarations, Serri and her counsel stated
that after they received the court’s tentative ruling on the motions for summary judgment,
they did some Internet research and learned that Judge Pierce graduated from the
University’s law school in 1974, that he donated between $500 and $999 to the
University between July 2002 and June 2003, and that “he lists his biography on the
[University’s] website.”
Before hearing argument on the summary judgment motions, Judge Pierce placed
both defense attorneys under oath. Ruby testified that Judge Pierce disclosed his
relationship to the University during at least two case management conferences (CMC).
Winner testified that, on two prior occasions, Judge Pierce had advised counsel that he
had attended the University and that he had, “as a private attorney, filed a suit against
[the] University.” Serri’s counsel, Samuel Kornhauser, disagreed; he said he attended
every hearing and conference and Judge Pierce never disclosed any relationship to the
University. Based on this evidence, Judge Pierce denied the Statement as untimely, then
heard argument on the summary judgment motions.
On September 2, 2011, the court filed a written order striking the Statement as
untimely, citing section 170.4.8 The order contained a finding that Judge Pierce had

8
Section 170.3, subdivision (c)(5) provides in part: “A judge who refuses to
recuse himself or herself shall not pass upon his or her own disqualification or upon the
sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a
party.” Section 170.4, subdivision (b) contains an exception to this rule. It provides:
“Notwithstanding paragraph (5) of subdivision (c) of Section 170.3, if a statement of

19
disclosed his connection to the University at a CMC on June 29, 2010. Attached to the
order was a copy of the minute order from that CMC, in which the clerk noted that Judge
Pierce had disclosed his relationship to the University and that the parties did not object.
According to the minute order, Serri’s counsel attended the June 29, 2010 CMC via
telephone conference call.
As we have noted, on September 12, 2011, Serri filed a petition for writ of
mandate in this court challenging the trial court’s ruling on the Statement. We denied the
writ petition. Contrary to Serri’s assertion in her opening brief, our order denying the
writ was not “without prejudice.” “The determination of the question of the
disqualification of a judge is not an appealable order and may be reviewed only by a writ
of mandate from the appropriate court of appeal . . . .” (§ 170.3, subd. (d).) A statutory
writ is the exclusive means of reviewing an order on a motion to disqualify a judge.
(People v. Freeman (2010) 47 Cal.4th 993, 1000.) The summary denial of such a writ
petition is a final decision on the merits. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160,
1172-1173.) For these reasons, Serri’s contentions regarding the disqualification motion
are not cognizable in this appeal.

II. The Court Properly Denied Serri’s Second Request for a Continuance

Serri contends the court erred when it denied her second request for a continuance
of the summary judgment motions.

A. Procedural Background: Discovery and Continuance Requests

Defendants began taking Serri’s deposition on August 4, 2008. Due to
“innumerable postponements” and delays, it took over two years to finish Serri’s
deposition, which was scheduled over nine separate dates and finally completed on

disqualification is untimely filed or if on its face it discloses no legal grounds for
disqualification, the trial judge against whom it was filed may order it stricken.”

20
December 3, 2010. In early 2009, Serri’s counsel agreed that he would not schedule any
of Defendants’ depositions until after Serri’s deposition was completed. The only
discovery Serri undertook before the completion of her deposition was to serve form
interrogatories on Defendants. On December 22, 2010, after her deposition was done,
Serri served over 170 requests for production of documents on Defendants. In January
2011, Serri’s counsel began, but did not complete, the depositions of Ottoboni, Veit, and
Warren. In February 2011, Defendants produced over 3,000 documents in response to
Serri’s requests for production.
On June 1, 2011, two weeks after the summary judgment motions were filed,
Serri’s counsel noticed (1) McDonald’s deposition; (2) the continued depositions of
Warren, Ottoboni, and Veit; and (3) the depositions of two other University employees.
On June 27, 2011, Serri’s counsel noticed Ambelang’s deposition. Despite scheduling
difficulties and less than the statutorily required notice, all of these depositions were
completed before July 6, 2011.
On July 6, 2011, Serri’s counsel asked Defendants to stipulate to continue the
hearing on the motions for summary judgment so he could complete additional discovery.
At that time, no further depositions had been noticed and no discovery was pending.
Defendants refused to stipulate to a continuance, so on July 8, 2011, Serri made an ex
parte application to the court to continue both the hearing on the summary judgment
motions and the trial date for four weeks. Serri’s counsel declared that to properly
prepare Serri’s opposition to the motions for summary judgment, he needed additional
discovery, including completing the depositions of Ottoboni and Veit and taking the
depositions of eight other witnesses, including Linda Campbell. When the ex parte
application was filed, none of those depositions had been noticed. Serri’s counsel also
stated that he needed time to file motions to compel Defendants’ answers to deposition
questions.

21
Rather than decide the continuance request on an ex parte basis, the court
scheduled a hearing and issued an order that permitted Defendants to file opposition to
Serri’s application. Defendants opposed the continuance request, arguing that Serri did
almost no discovery for nearly four years and did very little discovery after her deposition
was completed, even after Defendants told the court in April 2011 that they planned to
move for summary judgment. Defendants also argued that the declaration of Serri’s
counsel did not meet the statutory requirements for a continuance because it failed to
show that “facts essential to justify opposition may exist but cannot, for reasons stated,
then be presented” (§ 437c, subd. (h)).
At the hearing on the motion for a continuance, the court asked Serri’s counsel
why the depositions at issue had not been noticed in December 2010 and why Serri’s
discovery had not been completed.9 Notwithstanding the court’s questions and concerns
about the discovery, it continued the hearing on the motions for summary judgment from
August 2, 2011, to August 25, 2011, and extended the deadline for Serri to file opposition
to the motions from July 19, 2011, to August 11, 2011.
On August 11, 2011, Serri filed her opposition to the motions for summary
judgment. In the first paragraph of her memorandum of points and authorities, Serri
requested a further continuance “to obtain the essential remaining discovery she need[ed]
to oppose” the motions. She acknowledged that she had previously been granted a four-
week extension of time to do discovery, but argued that Defendants had “refused to
produce key witnesses (Linda Campbell and the Person Most Knowledgeable (‘PMK’))”
from the University. Serri’s opposition did not include a declaration from her counsel
supporting her second request for a continuance.

9
At that point, more than four years had passed since Serri filed her complaint and
almost three years had passed since Defendants had answered the fourth amended
complaint.

22
In its reply, the University argued that Serri’s second continuance request should
be denied because it did not meet the requirements of section 437c, subdivision (h),
“which requires a declaration identifying specific facts that [Serri] contends are essential
to opposing the motion.” The University also argued that Serri had “provided no
evidence that Defendants have ‘refused to produce’ anyone” or shown good cause for a
further continuance.
On August 23, 2011, two days before the hearing on the motions for summary
judgment, Serri’s counsel filed a supplemental declaration, which set forth his efforts to
take Campbell’s deposition, but did not contain any facts related to the deposition of the
PMK from the University.10 According to the supplemental declaration and exhibits
attached thereto, Serri’s counsel first served a notice for Campbell’s deposition on July
11, 2011 (three days after he filed his first application for a continuance). The deposition
was set for July 22, 2011. Campbell, who was on family medical leave to care for her
sick husband, was not available on July 22, 2011. The parties thereafter attempted to
schedule her deposition for different dates in August 2011, but some of the dates did not
work because of Campbell’s schedule (her husband had surgery on one of the dates) and
because Serri’s counsel was on vacation for two weeks. On July 29, 2011, Serri sought
assistance from the court on an ex parte basis to compel Campbell’s deposition. The
court ordered the University’s counsel to do his best to produce Campbell; the order

10
Serri asked the University to produce the PMK to testify regarding 10 different
topics. When the University objected to the scope of the deposition notice, Serri sought
an ex parte order from the court compelling the deposition of the person or persons most
knowledgeable and an order shortening time for taking the deposition(s). The court
granted partial relief and ordered the University to produce the persons most
knowledgeable regarding three of the 10 topics identified in Serri’s deposition notice.
The court held that the depositions need not take place on August 2, 2011, as noticed.
The day before the hearing on the motions for summary judgment, Serri took the
depositions of two persons the University had identified as PMK’s on the topics ordered
by the court.

23
stated that the court was “not ordering [] Campbell to appear if the circumstances
underlying her leave make it unreasonable to do so.”
At the hearing on the motions for summary judgment, Serri did not mention her
request for a continuance. The court denied Serri’s request for a further continuance
because she failed “to submit a declaration indicating that facts essential to her opposition
exist and could be established through additional discovery.”

B. Legal Principles Governing Continuances and Standard of Review

Generally, the power to determine whether a continuance should be granted is
within the discretion of the court, and there is no right to a continuance as a matter of law.
(Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d
167, 170 (Mahoney).) “ ‘[T]here is no policy in this state of indulgence or liberality in
favor of parties seeking continuances’ ” (Id. at pp. 171, 172.)
Section 437c, subdivision (h) creates an exception to the general rule. (Mahoney,
supra, 223 Cal.App.3d at p. 170.) It provides: “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, then
be presented, the court shall deny the motion, or order a continuance to permit affidavits
to be obtained or discovery to be had or may 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.” (§ 437c, subd. (h).) Section 437c, subdivision (h) mandates a continuance of the
hearing on a motion for summary “ ‘ “ ‘upon a good faith showing by affidavit that a
continuance is needed to obtain facts essential to justify opposition to the motion.’ ” ’ ”
(Mahoney, at p. 170, original italics.)
The plaintiff in Mahoney did not file any opposition to the defendants’ motion for
summary judgment. After the time for filing opposition had passed, she requested and

24
received a two-week continuance from the defendants. She subsequently made a second,
oral request for a continuance at the time set for the continued hearing on the motion
without submitting a written declaration. (Mahoney, supra, 223 Cal.App.3d at p. 172.)
The appellate court affirmed the trial court’s order denying the second request for a
continuance. The court held that although a trial court may excuse the failure to comply
with the requirement of a declaration in support of a motion for continuance, it is not
required to do so. (Ibid.)
Where the party opposing the motion fails to make the factual showing required
by section 437c, subdivision (h), a continuance is not mandatory. (Lerma v. County of
Orange (2004) 120 Cal.App.4th 709, 716 (Lerma).) In such cases, “the court must
determine whether the party requesting the continuance has nonetheless established good
cause therefor. That determination is within the court’s discretion.” (Id. at p. 716.)

C. Analysis

Serri made her second request for a continuance in her points and authorities in
opposition to the motion, but neglected to file an affidavit or declaration supporting the
request on or before the date her opposition was due, as required by section 437c,
subdivision (h). Although the trial court had the power to excuse Serri’s failure to file a
timely declaration, it was not required to do so, and whether to grant the request was
within the court’s discretion. (Mahoney, supra, 223 Cal.App.3d at p. 172; Lerma, supra,
120 Cal.App.4th at p. 716.)
Serri argues that she was not required to support her second continuance request
with a new declaration and that she was entitled to rely on the declaration her counsel
filed in support of her first continuance request, which stated that Campbell needed to be
deposed “to rebut her claims as to potential harm to [the University] regarding federal
contracts due to the alleged lack of an Affirmative Action Plan.”

25
“ ‘The nonmoving party seeking a continuance “must show: (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.
[Citations.]” [Citation.]’ Generally speaking, the party seeking the continuance must
‘provide supporting affidavits or declarations detailing facts that would establish the
existence of controverting evidence . . . .’ ” (Lerma, supra, 120 Cal.App.4th at p. 715.)
The declarations in Lerma were “non-specific.” (Ibid.) “The only thing before the court
was the attorney’s bald assertion that facts essential to justify opposition may have
existed, but there was no clear statement as to what those facts may have been. [S]ection
437c, subdivision (h) requires more than a simple recital that ‘facts essential to justify
opposition may exist.’ The . . . declaration in support of the continuance request must
detail the specific facts that would show the existence of controverting evidence.” (Ibid.)
“There is good reason for this more exacting requirement. The statute cannot be
employed as a device to get an automatic continuance by every unprepared party who
simply files a declaration stating that unspecified essential facts may exist. The party
seeking the continuance must justify the need, by detailing both the particular essential
facts that may exist and the specific reasons why they cannot then be presented.” (Id. at
pp. 715-716.)
In our view, counsel’s original declaration was insufficient to meet the
requirements of section 437c, subdivision (h), as explained in Lerma. The declaration did
not set forth the particular facts that may exist or explain why additional time was needed
to obtain those facts. Facts relating to the parties efforts to schedule Campbell’s
deposition, her limited availability due to her husband’s illness, and the court’s order on
Serri’s request to compel Campbell’s deposition were all relevant to the question whether
the motion should be continued to obtain her deposition. None of that information was in
counsel’s original declaration.

26
Serri’s reliance on Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008, Larson v.
Solbakken (1963) 221 Cal.App.2d 410, 430, and Friedman v. Knecht (1967) 248
Cal.App.2d 455, 460 is unavailing. Those cases involved the continuance of a trial to
allow a party to present evidence; none of them involved the continuance of a summary
judgment motion or section 437c, subdivision (h).
Lack of diligence is a factor the court may consider when exercising its discretion
to continue the hearing on a motion for summary judgment. (Knapp v. Doherty (2004)
123 Cal.App.4th 76, 102; see also Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255-
257.) The only discovery Serri did before her deposition was completed was to propound
a set of form interrogatories. Although the parties agreed that Serri would not take any of
Defendants’ depositions until after her deposition was completed, nothing prevented her
from propounding other forms of discovery. Serri waited until after her deposition was
completed to propound requests for production of documents, and she took a few
depositions in January 2011. Although Serri obtained most of Defendants’ documents in
February 2011, she did not notice any other depositions until June 2011, two weeks after
she was served with the summary judgment motions. Further, Serri had already obtained
one continuance to conduct discovery.
Serri said she needed to depose 10 people when she made her first continuance
request, but she abandoned efforts to depose five of those individuals. Furthermore,
although the PMK depositions were not completed until the day before the hearing on the
summary judgment motions, Serri does not contend that those depositions yielded facts
that established the existence of additional controverting evidence. In addition, the
University offered to make Campbell available on more than one occasion and the court
issued an order that Campbell was not required to appear if the circumstances underlying
her leave made it unreasonable to do so. Moreover, while Serri asserts that she needed
Campbell’s testimony to establish that the University did not lose any grants as a result of
the missing AAP’s, that fact was not contested by the University. Under these

27
circumstances, the court did not abuse its discretion when it denied Serri’s second request
to continue the hearing on the summary judgment motions.

III. Defendants’ Objections to Serri’s Evidence

Serri contends the trial court abused its discretion when it sustained all of
Defendants’ objections to the evidence she submitted in opposition to the motions for
summary judgment. Acknowledging the court’s statements that it conducted “a
comprehensive review” of all of her evidence, and even if it had found her “evidence to
be admissible, it would not impact and/or change any of the rulings,” Serri argues that the
court committed reversible error when it sustained Defendants’ objections to her
evidence.

A. Background

Serri’s evidence in opposition to the motions for summary judgment consisted of
the declarations of her counsel, Samuel Kornhauser, and an expert witness, John Fox.
Kornhauser attached 408 exhibits to his declaration, which consume 1374 pages of the
record on appeal.
Both the University and the Individual Defendants filed written objections to
Serri’s evidence. The University’s objections were 22 pages long; it made 124 objections
to 116 of Serri’s exhibits and 48 objections to statements in Fox’s declaration. The
Individual Defendants’ objections were 40 pages long; they made 214 objections to
almost every one of Serri’s exhibits. They also objected to Fox’s declaration.
Serri filed a 47-page response to the University’s objections. The record contains
a similar 63-page document that appears to be a template for responding to the Individual

28
Defendants’ objections, but the column entitled “Reasons Why Defendants’ Objections
are Without Merit” in that document is blank.11
One of Defendants’ objections was that Serri’s evidence included “nearly 200
exhibit tabs for which no exhibits were submitted.” In other words, although there were
tabs for 408 exhibits, almost half of those tabs did not contain any evidence. The
Individual Defendants identified those exhibits by number and also objected to a subset
of those exhibits that Serri cited to in her opposition papers. For example, Serri cited
exhibits 21, 271, 272, 352, and 378 in her points and authorities, even though no evidence
was submitted under those exhibit tabs. At the hearing, Serri’s counsel explained that the
408 exhibits were from his trial book and that he told his secretary to take out the exhibits
that he was not using to oppose the summary judgment motion, but his secretary forgot to
remove the exhibit tabs.
The University objected to a number of Serri’s exhibits on the grounds of
relevance, arguing that while they were in the 1374 pages of material Serri submitted,
they were not cited anywhere in Serri’s opposition papers. Defendants objected that
many of the exhibits lacked foundation because they were not properly authenticated, that

11
Since Serri did not respond to the Individual Defendants’ objections to her
evidence below, they contend that she has waived any challenge to the court’s evidentiary
rulings. We disagree. A party that objects to evidence presented on a motion for
summary judgment must either timely file separate written objections or object orally at
the hearing. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 (Reid), citing § 437c,
subds. (a), (b)(1)-(4) and Cal. Rules of Court, rules 3.1352, 3.1354(a).) “Evidentiary
objections not made at the hearing shall be deemed waived.” (§ 437c, subd. (b)(5).) But
neither section 437c nor the Rules of Court require a party to file written opposition to the
opposing party’s objections or risk waiver. (See Greenspan v. LADT LLC (2010) 191
Cal.App.4th 486, 526 [no authority suggests that responses to the objections must be
made in the trial court to preserve a challenge to the trial court’s rulings on appeal].)
Each of the parties objected to the opposing side’s evidence, thereby avoiding waiver as
to the evidence to which they objected.

29
many were inadmissible hearsay, and others were irrelevant because they did not support
the proposition for which they were cited.
In accordance with California Rules of Court, rule 3.1354(c), Defendants filed
71 pages of proposed orders on their objections. Rather than use the proposed orders, the
court ruled on the objections in its order granting summary judgment. The court
sustained all of Defendants’ objections, stating: “Although Plaintiff’s evidence contains
over 400 exhibit tabs, nearly 200 exhibit tabs fail to contain any exhibits and many of the
other exhibits lack foundation, are inadmissible hearsay, and/or are irrelevant as they are
not cited in Plaintiff’s opposition. With regard to the declaration of John Fox, Esq., many
of the statements contained therein are not factually supported and constitute improper
expert and/or legal opinion. Regardless, after a comprehensive review of all the evidence
submitted by Plaintiff, the Court finds that even if it found Plaintiff’s evidence to be
admissible, it would not impact and/or change any of the rulings discussed below.”

B. Standard of Review

According to the weight of authority, appellate courts “review the trial court’s
evidentiary rulings on summary judgment for abuse of discretion. [Citations.] As the
part[y] challenging the court’s decision, it is [Serri’s] burden to establish such an abuse,
which we will find only if the trial court’s order exceeds the bounds of reason.” (DiCola
v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679
(DiCola); but see Reid, supra, 50 Cal.4th 512, 535 [Supreme Court noted issue but
concluded that it need “not decide generally whether a trial court’s ruling on evidentiary
objections based on papers alone in summary judgment proceedings are reviewed for
abuse of discretion or reviewed de novo”] and Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 255, fn.4 (Nazir) [observing that the standard of review is unsettled and
assuming, without deciding, that the abuse of discretion standard applies].)

30
This court has stated: “In determining whether a triable issue was raised or
dispelled, we must disregard any evidence to which a sound objection was made in the
trial court, but must consider any evidence to which no objection, or an unsound
objection, was made. (See Reid . . . , supra, 50 Cal.4th 512, 534; . . . § 437c, subds.
(b)(5), (c), (d).) Such evidentiary questions, however, are subject to the overarching
principle that the proponent’s submissions are scrutinized strictly, while the opponent’s
are viewed liberally.” (McCaskey v. California State Automobile Assn. (2010) 189
Cal.App.4th 947, 957.)

C. Objections to Serri’s Documentary Exhibits

Citing Nazir, Serri argues that the trial court’s “blanket and baseless grant” of all
of Defendants’ evidentiary objections was an abuse of discretion.
The plaintiff in Nazir, who was of Pakistani ancestry, sued his employer (United
Airlines) and a supervisor for discrimination, retaliation, harassment, and other claims
after he was terminated from his employment. (Nazir, supra, 178 Cal.App.4th at pp. 248-
249.) The defendants moved for summary judgment; their reply papers included 764
objections to the plaintiff’s evidence, set forth in 324 pages. (Id. at pp. 249, 254.) The
trial court overruled one and sustained 763 of the objections. (Id. at p. 255.) On appeal,
the plaintiff acknowledged that some of the objections could have been properly
sustained, but argued that the order sustaining all but one of the objections was error.
The appellate court agreed and held that the trial court abused its discretion by making a
blanket ruling sustaining all but one of the defendants’ objections. (Id. at p. 254.)
The court stated that “a trial court presented with timely evidentiary objections in
proper form must expressly rule on the individual objections.”12 (Nazir, supra, 178

12
The court also stated that if the trial court does not rule on the objections, “the
objections are deemed waived and the objected-to evidence included in the record.”
(Nazir, 178 Cal.App.4th at p. 255, citing Demps v. San Francisco Housing Authority

31
Cal.App.4th at p. 255.) Although the trial court had “ ‘ruled,’ however conclusorily, that
all objections save one were sustained,” the appellate court held that the trial court’s
blanket ruling was “hardly a ruling, as it could not provide any meaningful basis for
review.” (Id. at p. 255.) The court assumed, without deciding, that the abuse of
discretion standard applied, and stated, “[W]e have no hesitancy in holding that the
sustaining of all but one of defendants’ 764 objections was an abuse of discretion. Put
otherwise, there is no way that the trial court could properly have sustained 763
objections ‘ “ ‘guided and controlled . . . by fixed legal principles.’ ” ’ [Citation.]”
(Ibid.)
The Nazir court also reviewed the objections and concluded that most were either
unsupported by any rule or were patently frivolous. (Nazir, supra, 178 Cal.App.4th at
pp. 255-257.) The court observed that (1) some of the “objections did not even assert any
basis for the objection”; (2) some of the “objections were to [the] plaintiff’s testimony
about his dates of employment, his religion, his skin color, and his national origin”;
(3) “[o]ver 250 of the sustained objections failed to quote the evidence objected to, in
violation of California Rules of Court, rule 3.1354”; (4) 27 of the objections “were to
[the] plaintiff’s brief, not his evidence”; and (5) “many of the objections were frivolous.”
The court held that all of the plaintiff’s admissible evidence was properly before it and
that the admissible evidence created triable issues of fact precluding summary judgment.
(Id. at pp. 256, 257, 264; accord Twenty-Nine Palms Enterprises Corp. v. Bardos (2012)
210 Cal.App.4th 1435, 1447-1449 (Palms) [blanket ruling summarily sustaining all of the

(2007) 149 Cal.App.4th 564, 578.) However, Nazir was decided before Reid. In Reid,
the Supreme Court addressed the effect of a trial court’s failure to rule on evidentiary
objections in a motion for summary judgment and held, “If the trial court fails to rule
after a party has properly objected, the evidentiary objections are not deemed waived on
appeal.” (Reid, supra, 50 Cal.4th at p. 517.) Instead, “it is presumed that the objections
have been overruled, the trial court considered the evidence in ruling on the merits of the
summary judgment motion, and the objections are preserved on appeal.” (Id. at p. 534.)
Thus, in applying Nazir, we reject the “deemed waived” aspect of its holding.

32
plaintiff’s 39 objections to the defendant’s evidence, without reasoning, was an abuse of
discretion].)
Serri’s brief provides little help in addressing the propriety of the trial court’s
ruling on Defendants’ objections to Serri’s evidence. Unlike Nazir, Serri does not
provide any examples of specific objections that the trial court sustained that were
erroneous or unreasonable. After citing Nazir, Serri asserts, “[m]oreover, as pointed out
in Plaintiff’s [47-page] written responses to Defendants’ evidentiary objections . . . ,
Defendants’ objections were without merit and it was erroneous to sustain them.” It is
inappropriate for an appellate brief to incorporate by reference arguments contained in a
document filed in the trial court. (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 294, fn. 20 (Soukup).) Such practice does not comply with the requirement
that an appellate brief “support each point by argument and, if possible, by citation of
authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) We shall therefore disregard
Serri’s effort to incorporate by reference arguments she made below in response to
Defendants’ objections to her evidence. (Soukup, at p. 294, fn. 20.)
The only other argument Serri makes regarding her documentary evidence is the
contention that the court erred when it sustained Defendants’ objections that her evidence
lacked foundation. Serri does not, however, discuss this point in the context of any
specific exhibit or exhibits. Serri argues that almost all of her exhibits were produced by
Defendants in response to her document requests and that “by producing their documents
in discovery, [Defendants] have admitted their genuineness.” The legal authority Serri
cites, however, neither supports nor addresses her contention.13

13
Evidence Code section 1220 governs party admissions as an exception to the
hearsay rule and People v. Richards (1976) 17 Cal.3d 614, 617-618 (disapproved on
another ground as stated in People v. Carbajal (1995) 10 Cal.4th 1114, 1126) discusses
the admissibility of statements under the party declarant and adopted admission
exceptions to the hearsay rule.

33
The Individual Defendants concede that many of Serri’s documents bear Bates-
stamp numbers indicating they were produced by Defendants. They contend, however,
that dozens of exhibits consist of hand-written notes by unidentified authors and other
items that require additional authentication. They argue, “Not every document that
comes out of an opposing party’s files is automatically admissible against even that party,
much less as to all others,” and that more is required to establish admissibility. We agree.
Documents obtained in discovery in response to a request for production of
documents may be used to support or oppose a motion for summary judgment, but must
be presented in admissible form. This means the evidence must be (1) properly identified
and authenticated, (2) admissible under the secondary evidence rule, (3) nonhearsay or
admissible under some exception to the hearsay rule, and (4) a complete record, not
selected portions of the document. (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2013) ¶¶ 10:168-10:169, pp. 10-70 to 10-71.) Unless the
opposing party admits the genuineness of the document, the proponent of the evidence
must present declarations or other “evidence sufficient to sustain a finding that it is the
writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400; see
Evidence Code, §§ 1410 et seq. for methods of authenticating documents.)
Serri’s only effort to authenticate her exhibits was Kornhauser’s declaration that
the “exhibits attached hereto are true and correct copies of the originals or excerpts of the
originals or copies of documents produced by Defendants in this action or excerpts of the
originals of depositions or transcripts of investigations in this case.” Since the Individual
Defendants have briefed the issue, we shall address the propriety of the trial court’s order
sustaining Defendants’ objections to the handwritten notes.
Serri’s evidence includes more than 20 exhibits that consist of handwritten notes
(see e.g., Exhibits 38, 43, 68, 75, 76). According to Serri, these are McDonald’s notes.
However, none of the handwritten notes are signed and there is no evidence they were
written by McDonald. To authenticate the notes, Serri could have propounded requests

34
for admission asking McDonald to admit their authenticity and to admit that she wrote
them (§ 2033.010). Serri could also have asked McDonald to authenticate the notes when
she took McDonald’s deposition. There is no evidence in the record that she did either of
these things. Furthermore, Defendants did not rely on the notes in their own submission.
(Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1526-1529 [trial court erred in
sustaining authentication, foundation, and other objections to deposition excerpts in the
plaintiff’s evidence where the moving parties relied on the same depositions].) In
addition, many of the notes, to the extent we can decipher them, appear to document
conversations with other persons and are therefore hearsay. Since Serri did not meet her
burden of demonstrating the admissibility of the handwritten notes, the trial court did not
err in sustaining objections to them.
As for the remainder of Serri’s documentary exhibits, this case is distinguishable
from Nazir since Defendants’ objections do not suffer from the same defects as those in
Nazir. Serri fails to cite examples of objections that were frivolous and many objections
are supported by rules of evidence. On the other hand, our review of the record discloses
a problem with the trial court’s ruling: some of the exhibits Defendants objected to were
identical to documents Defendants had submitted in support of their motions for
summary judgment (compare Serri’s Exhibits 66, 124, 181 and Individual Defendants’
Exhibits L, R, and BB). The Individual Defendants objected to these exhibits on
authentication, foundation, hearsay, and relevance grounds; the University objected that
one was hearsay and another was irrelevant. Since Defendants had relied on this very
same evidence, there was no merit to these objections and they should not have been
sustained.
We also look to Reid for guidance. The defendant employer in Reid had raised
more than 175 separate objections to the plaintiff employee’s evidence opposing
summary judgment. (Reid, supra, 50 Cal.4th at p. 533.) Rather than rule on the
objections, the trial court made what was known as a Biljac ruling and stated, “ ‘The

35
Court declines to render formal rulings on evidentiary objections. In ruling, the Court
relied on competent and admissible evidence pursuant to Biljac Associates v. First
Interstate Bank [(1990)] 218 Cal.App.3d 1410, 1419-1429 [Biljac].’ ” (Reid, at p. 533.)
The Reid court disapproved of Biljac “to the extent it permits the trial court to avoid
ruling on specific evidentiary objections.” (Reid, at p. 532 & fn. 8.) The court held that
the “trial court must rule expressly on those objections. [Citation.] If the trial court fails
to rule, the objections are preserved on appeal.” (Id. at p. 532, citing Vineyard Springs
Estates v. Superior Court (2004) 120 Cal.App.4th, 633, 642-643 [trial courts have a duty
to rule on evidentiary objections presented in proper form].)
The Supreme Court “recognize[d] that it has become common practice for litigants
to flood the trial courts with inconsequential written evidentiary objections, without
focusing on those that are critical. Trial courts are often faced with ‘innumerable
objections commonly thrown up by the parties as part of the all-out artillery exchange
that summary judgment has become.’ [Citation.] Indeed, the Biljac procedure itself was
designed to ease the extreme burden on trial courts when all ‘too often’ ‘litigants file
blunderbuss objections to virtually every item of evidence submitted.’ [Citations.] To
counter that disturbing trend, [the Supreme Court] encourage[d] parties to raise only
meritorious objections to items of evidence that are legitimately in dispute and pertinent
to the disposition of the summary judgment motion. In other words, litigants should
focus on the objections that really count. Otherwise, they may face informal reprimands
or formal sanctions for engaging in abusive practices. At the very least, 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,
supra, 50 Cal.4th at pp. 532-533; italics added.)
As we have noted, another issue in Reid was the effect of the trial court’s Biljac
ruling and whether it resulted in a waiver of the objections and, if not, whether the

36
objections should be deemed to have been sustained or overruled. (Reid, at pp. 533-535.)
The court held that “if the trial court fails to rule expressly on specific evidentiary
objections, it is presumed that the objections have been overruled, the trial court
considered the evidence in ruling on the merits of the summary judgment motion, and the
objections are preserved on appeal.” (Id. at p. 534.)
The trial court’s ruling here is different from the Biljac ruling that was
disapproved of in Reid, but is equally problematic. The trial court in Reid declined to
rule on the evidentiary objections, but stated that it was relying only “on competent and
admissible evidence.” (Reid, supra, 50 Cal.4th at p. 533.) In this case, the court ruled on
the objections––its blanket ruling sustained all of the objections and observed that many
of the exhibits lacked foundation, were inadmissible hearsay, or were irrelevant because
they were not cited in Serri’s opposition. This blanket ruling was “hardly a ruling,”
provided no meaningful basis for review, and could be treated as a failure to rule. (Nazir,
supra, 178 Cal.App.4th at p. 255.) The ruling was similar to trial court rulings under the
Biljac procedure that was disapproved of in Reid since the result in both situations is a
failure to rule on the objections.
After the court sustained all of Defendants’ objections, it stated that even if Serri’s
evidence was admissible, it would not impact or change any of the court’s rulings. This
statement does not provide any more guidance than a Biljac ruling. Defendants objected
to all but 13 of Serri’s 408 exhibits. Under the trial court’s ruling, then, either most of
Serri’s evidence was excluded or all of it was admitted.
Given the number of objections and the fact that some were sustained in error, we
follow Nazir and hold that the trial court abused its discretion by issuing a blanket ruling
on Defendants’ objections.14 (Nazir, supra, 178 Cal.App.4th at p. 255, italics added.)

14
We are not unsympathetic to the plight of the trial judge faced with hundreds of
blunderbuss objections. As the court counseled in Reid, the litigants should focus their
objections on the items of evidence that are legitimately in dispute. And at the hearing on

37
Finally, “[i]n regard to whether the evidentiary ruling was harmless, an erroneous
evidentiary ruling requires reversal only if ‘there is a reasonable probability that a result
more favorable to the appealing party would have been reached in the absence of the
error. [Citation.]’ ” (Palms, supra, 210 Cal.App.4th at p. 1449; see Evid. Code, § 354.)
In this case, the court’s error in issuing a blanket evidentiary ruling does not change the
outcome of the motions because Serri’s admissible evidence does not create a triable
issue of material fact.
We have already addressed Defendants’ objections to the handwritten notes and
held that the court properly sustained them. Rather than discuss any other exhibits here,
we will discuss the admissibility of other evidence that Serri relies on in the balance of
this opinion as it relates to the substanive issues she raises on appeal.

D. Objections to John Fox’s Declaration

On appeal, Serri relies on the portion of Fox’s declaration in which he opines that
the University would not suffer any adverse consequences as a result of not having an
AAP. Without deciding whether the trial court erred when it sustained Defendants’
objections to this portion of Fox’s declaration, we shall assume this portion of the
declaration is admissible and will consider it in our review on appeal.

IV. The Court Properly Granted Summary Judgment

We begin by summarizing the legal principles that govern motions for summary
adjudication and summary judgment in general. We then discuss rules that are unique to
summary adjudication and summary judgment in employment cases.

the motion, the trial court should encourage the parties to “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, supra, 50
Cal.4th at pp. 532-533.)

38
A. Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar); Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 334 (Guz).) The trial court’s ruling on a motion for summary
adjudication, like that on a motion for summary judgment, is subject to this court’s
independent review. (Certain Underwriters at Lloyd’s of London v. Superior Court
(2001) 24 Cal.4th 945, 972.) In determining whether summary judgment was proper, we
analyze the propriety of granting summary adjudication with regard to each of Serri’s
causes of action.
In undertaking our independent review, we apply the same three-step analysis used
by the trial court. First, we identify the issues framed by the pleadings. Second, we
determine whether the moving party has established facts justifying judgment in its favor.
Finally, in most cases, if the moving party has carried its initial burden, we decide
whether the opposing party has demonstrated the existence of a triable issue of material
fact. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887.)
In performing our review, we view the evidence in a light favorable to the losing
party (Serri), liberally construing her evidentiary submission while strictly scrutinizing
the moving party’s own showing and resolving any evidentiary doubts or ambiguities in
the losing party’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-
769.)
B. General Rules Regarding Summary Judgment and Summary
Adjudication

“A motion for summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of
duty.” (§ 437c, subd. (f)(1).) The statute thus authorizes motions for summary
adjudication that “reduce the costs and length of litigation” by limiting the substantive

39
areas of dispute. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,
1852; see also, Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)
Summary judgment motions serve a similar purpose, namely “to identify those
cases in which there is no factual issue which warrants the time and cost of factfinding by
trial.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735
(Martin).) Thus, the object of both procedures is “to cut through the parties’ pleadings”
to determine whether trial is necessary to resolve their dispute. (Aguilar, supra, 25
Cal.4th at p. 843.)
Summary adjudication motions are “procedurally identical” to summary judgment
motions. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) 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.” (§ 437c, subd. (c).) To be entitled to judgment as a matter of law,
the moving party must show by admissible evidence that the “action has no merit or that
there is no defense” thereto. (Id., subd. (a).) A defendant moving for summary judgment
meets this burden by presenting evidence demonstrating that one or more elements of the
cause of action cannot be established or that there is a complete defense to the action.
(Id., subds. (o), (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) Once the
defendant makes this showing, the burden shifts to the plaintiff to show that a triable
issue of material fact exists as to that cause of action or defense. (§ 437c, subd. (p)(2);
see Aguilar, at p. 850.) Material facts are those that relate to the issues in the case as
framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)
There is a genuine issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th
at p. 845.)

40
C. Summary Judgment/Summary Adjudication in Employment Cases

Both federal and state laws prohibit employers from discriminating against
employees on the basis of race, sex, or ethnic origin. (Gov. Code, §§ 12940, subd. (a),
12941, subd. (a); 42 U.S.C. § 2000e et seq. [Title VII of the Civil Rights Act of 1964].)
In cases alleging employment discrimination, we analyze the trial court’s decision
on a motion for summary judgment using a three-step process that is based on the
burden-shifting test that was established by the United States Supreme Court for trials of
employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792. (See, e.g., Guz, supra, 24 Cal.4th at pp. 354-355; Reeves v. Safeway Stores,
Inc. (2004) 121 Cal.App.4th 95, 111 (Reeves).) This test “reflects the principle that direct
evidence of intentional discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test
allows discrimination to be inferred from facts that create a reasonable likelihood of bias
and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.)
At trial, under the first step of the McDonnell Douglas framework, the plaintiff
may raise a presumption of discrimination by presenting a “prima facie case,” the
components of which vary depending upon the nature of the claim, but typically require
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
[that] suggests discriminatory motive.’ ” (Reeves, supra, 121 Cal.App.4th at p. 112.) “A
satisfactory showing to this effect gives rise to a presumption of discrimination which, if
unanswered by the employer, is mandatory—it requires judgment for the plaintiff.”
(Ibid., citing Guz, supra, at pp. 355-356.) However, under the second step of the test,
“the employer may dispel the presumption merely by articulating a legitimate,

41
nondiscriminatory reason for the challenged action. [Citation.] At that point the
presumption disappears.” (Ibid.) Under the third step of the test, the “plaintiff must
. . . have the opportunity to attack the employer’s proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive.” (Guz, supra, at
p 356.)
The McDonald-Douglas framework is modified in the summary judgment context.
In a summary judgment motion in “an employment discrimination case, the employer, as
the moving party, has the initial burden to present admissible evidence showing either
that one or more elements of plaintiff’s prima facie case is lacking or that the adverse
employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v.
KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz, supra, 24 Cal.4th at
p. 357.) Defendants here presented evidence that Serri was terminated for legitimate
reasons that were “unrelated to unlawful discrimination.” (Hicks, at p. 1003.)
“[I]f nondiscriminatory, [the employer’s] true reasons need not necessarily have
been wise or correct. [Citations.] While the objective soundness of an employer’s
proffered reasons supports their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons
[citation] in this context are reasons that are facially unrelated to prohibited bias, and
which, if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th
at p. 358; original italics.) Examples of legitimate reasons are a failure to meet
performance standards (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th
1133, 1149) or a loss of confidence in an employee (Arteaga v. Brink’s, Inc. (2008) 163
Cal.App.4th 327, 352).
If the employer meets its initial burden, the burden shifts to the employee to
“demonstrate a triable issue by producing substantial evidence that the employer’s stated
reasons were untrue or pretextual, or that the employer acted with a discriminatory
animus, such that a reasonable trier of fact could conclude that the employer engaged in

42
intentional discrimination or other unlawful action.” (Cucuzza v. City of Santa Clara
(2002) 104 Cal.App.4th 1031, 1038 (Cucuzza).)
In Guz, the Supreme Court emphasized that “the great weight of federal and
California authority holds that an employer is entitled to summary judgment if,
considering the employer’s innocent explanation for its actions, the evidence as a whole
is insufficient to permit a rational inference that the employer’s actual motive was
discriminatory.” (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.) It is not sufficient for an
employee to make a bare prima facie showing or to simply deny the credibility of the
employer’s witnesses or to speculate as to discriminatory motive. (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1004 (Hersant); Wallis v. J.R.
Simplot Co. (1994) 26 F.3d 885, 890; Compton v. City of Santee (1993) 12 Cal.App.4th
591, 595-596.) Rather it is incumbent upon the employee to produce “substantial
responsive evidence” demonstrating the existence of a material triable controversy as to
pretext or discriminatory animus on the part of the employer. (University of Southern
California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039; Martin, 29 Cal.App.4th
at p. 1735.)

D. First and Second Causes of Action: The Trial Court Properly Granted
Summary Adjudication of Serri’s Employment Discrimination and
Tortious Discharge Claims

The trial court granted the University’s motions for summary adjudication of
Serri’s causes of action for employment discrimination, tortious discharge, and retaliation
in violation of the FEHA, finding that the University had presented sufficient evidence
that Serri’s termination was based upon legitimate, nondiscriminatory factors and that she
was terminated for failing to competently perform her job duties. The court also found
that Serri failed to produce substantial evidence that the University’s reasons were untrue
or pretextual or that the University acted with a discriminatory animus.

43
On appeal, Serri argues that the trial court erred because it failed to consider all of
the evidence and it improperly weighed conflicting evidence. In particular, Serri
contends the court failed to consider evidence that the University prevented her from
doing her job by refusing to: (1) hire a consultant to help her prepare the AAP,
(2) provide the data she needed to complete the AAP’s, (3) train her assistant, Linda
Jocewicz, to use certain computer software so she could retrieve the pertinent data
herself, and (4) allow Serri to attend seminars to update her skills. Serri also contends the
court failed to consider that preparation of the AAP’s was a minor part of her job.
The University contends Serri was terminated for legitimate, nondiscriminatory
business reasons, namely that she (1) “failed to prepare, develop and implement” the
University’s AAP for three years; (2) failed to disclose the nonexistence of those AAP’s
to her supervisors; and (3) made “misrepresentations” related to the AAP’s. These are
legitimate, nondiscriminatory reasons to explain Serri’s termination and are sufficient to
shift to Serri the burden of showing a triable issue of their falsity and ultimately of
discriminatory motive instead. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088,
1098.) Our analysis will therefore focus on the question whether Serri satisfied her
burden.
“[E]vidence that the employer’s claimed reason [for the employee’s termination]
is false—such as that it conflicts with other evidence, or appears to have been contrived
after the fact—will tend to suggest that the employer seeks to conceal the real reason for
its actions, and this in turn may support an inference that the real reason was unlawful.”
(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715; original italics.)
“ ‘The [employee] cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd, prudent, or competent.
[Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

44
reasons for its action that a reasonable factfinder could rationally find them “unworthy of
credence,” [citation], and hence infer “that the employer did not act for the [the asserted]
non-discriminatory reasons.” ’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005; original
italics.) “Logically, disbelief of an Employer’s stated reason for a termination gives rise
to a compelling inference that the Employer had a different, unstated motivation, but it
does not, without more, reasonably give rise to an inference that the motivation was a
prohibited one.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th
1510, 1531-1532 (McGrory).)
Serri attempts to demonstrate falsity and pretext by arguing that there was a
disputed factual issue on the question whether preparation of the AAP’s was the most
important part of her job. Indeed, Defendants relied on evidence, all of which was
authored by Serri, that the preparation of the AAP was one of her primary job duties.
The job description Serri prepared for McDonald in June 2006 stated more than once that
“develop[ing] and implement[ing] the annual affirmative action program for the
University” was one of her duties. The personal evaluation she prepared for Father
Locatelli in July 2004 discussed her work on the AAP. Her November 2005 letter to
Father Locatelli, in which she complained about her salary, listed supervising the
preparation of the “federally mandated annual” AAP as one of her job duties and
described the AAP as “pivotal and essential for us for obtaining and retaining federal
grants.” In deposition, Serri confirmed that these statements were true. And in her e-
mail to McDonald, protesting the decision to have McDonald take over responsibility for
the 2006 AAP, Serri described preparation of the AAP as “one of the roles that define my
position.”
Serri now disputes that preparation of the AAP’s was “the most important part of
her job.” She cites to Hirsch’s testimony that preparation of the AAP took only 15 to 20
hours of her time since she was authorized to use a consultant. But whether it was the
most important part of Serri’s job is not material or at issue. Evidence presented by both

45
sides supports the conclusion that Serri’s duties included preparing the AAP and that she
failed to prepare the narrative portion of the AAP (the part that she had previously
prepared personally) for three years.
In support of her contention that the University’s reasons for terminating her were
untrue or pretextual, Serri attempts to contradict her own deposition testimony that after
the University became a federal contractor it was “obligated to create the [AAP].” Citing
Fox’s declaration, she argues that she opined “incorrectly” that the University had to have
an AAP. On appeal, she contends she was not an expert in AAP compliance and that the
trial court ignored Fox’s declaration that the failure to have an AAP for three years would
result in “no sanctions, fines or adverse consequences” to the University.
This argument contradicts some of Serri’s documentary evidence (documents
authored by Serri in which she stated that the University was required to have an AAP) as
well as her own deposition testimony. We also note that other portions of Serri’s brief
(her statement of facts) state that federal contactors like the University are required “to
have an AAP in place and update it annually.” Fox declared that in his opinion, “no
sanctions, fines or adverse consequences will OR CAN ensue against a federal contractor
which . . . agrees to provide OFCCP [(the Office of Federal Contract Compliance
Programs)] with a delinquent AAP.” This does not create a triable issue on the question
whether the University was required to have an AAP. Indeed, the University does not
dispute that it suffered no adverse consequences as a result of Serri’s failure to prepare
the AAP’s.
Serri also argues that the University’s stated reason for firing her was untrue since
she presented evidence that she had prepared partial AAP’s for 2005 and 2006, and the
University prevented her from preparing complete AAP’s by failing to provide data and a
consultant. But it was undisputed that Serri did not prepare the narrative portion of the
AAP (the part that she prepared as contrasted with the parts that her assistant prepared)

46
for three years, and that she prepared the draft narratives she presented to McDonald and
Father Locatelli on the eve of their October 13, 2006 meeting.
Serri also relies on her deposition testimony that in 1992, 1993, or 1994, after she
showed one of her first AAP’s to Father Locatelli, she “sensed” that he was reluctant to
sign it. Serri testified that Father Locatelli questioned whether the goals set forth in the
AAP were quotas and that she “sensed he was not getting it and it was a source of
discomfort for him, so she never showed it to him again.” That Father Locatelli raised
questions about the goals set in early AAP’s, long before the University became a federal
contractor, does not mean that he and the University did not recognize the need to comply
with the AAP requirement after it became a federal contractor in 2000.
Serri also relies on her deposition testimony that Father Locatelli refused to
supervise her after 2003 and never asked her about the AAP’s. Based on this evidence,
Serri argues that since the lack of an AAP was of no concern to Father Locatelli, he could
not use her failure to prepare the AAP’s between 2004 and 2006 as an excuse to fire her
and that, therefore, the reason given for her termination was a pretext.
Citing Fox’s declaration, Serri argues that the University knew that any
noncompliance with the AAP requirement was easily correctable with an AAP consultant
and that it would not result in any adverse consequences for the University. Serri’s
argument on this point fails, however, because Fox’s declaration was prepared in August
2011, more than four years after Serri was terminated. Serri does not point to any
evidence that anyone at the University knew that the lack of an AAP would allegedly not
result in adverse consequences when the University terminated her in March 2007. To
the contrary, undisputed evidence indicates that Serri (the only person at the University
with any experience in this area) told McDonald and Father Locatelli that the existing
AAP was indefensible and that the University was likely to be audited by the federal
government.

47
Having reviewed Serri’s evidence and arguments, we conclude that a trier of fact
could not reasonably conclude that the University’s stated reasons for terminating Serri
“were implausible, or inconsistent or baseless.” (Hersant, supra, 57 Cal.App.4th at
p. 1009.) We therefore hold that Serri has not met her burden of producing substantial
evidence that the University’s reason for terminating her were pretextual or false and
used merely to veil an unlawful act of discrimination.15 (Ibid.)
Serri also contends that she proved discriminatory animus. Serri relies on the
following evidence. Her successor (Hirsch) was a white female. McDonald and Hirsch,
who were Caucasian females, were allowed to hire an AAP consultant. Serri argues that
since there was no real reason to fire her or treat her differently, the only logical
explanation for the different treatment is her national origin.16 But in her opening brief,
Serri herself explained why the University had to hire an AAP consultant for Hirsch and
McDonald: “Hirs[c]h had no ability to prepare AAPs” and McDonald “had no AAP

15
At oral argument, Serri argued that this case was similar to Cheal v. El Camino
Hospital (2014) 223 Cal.App.4th 736, a recent decision of this court that reversed a
summary judgment in a wrongful termination case based on age discrimination. In our
view, this case is distinguishable from Cheal. The discharged employee in Cheal was
terminated for making several errors in the preparation of patient meals. In opposition to
the employer’s motion, the employee presented evidence that, given the nature of the
work, the hospital expected mistakes; that her mistakes did not exceed the standards the
hospital had set for acceptable performance; and that other employees were not
disciplined for making the same types of mistakes. (Id. at pp. 740-754.) The employee
also presented evidence of discriminatory animus by her supervisor based on the
supervisor’s statement to a former friend that she favored younger workers. (Id. at
pp. 754-761.) Unlike the employee in Cheal, who did her assigned tasks but arguably
made mistakes within an acceptable range of performance, Serri did not perform an
important function of her position for three years and then misrepresented the existence
of certain AAP’s to Father Locatelli and other University personnel.
16
Serri argues that she was the only high ranking Puerto Rican or Latina staff
member at the University. However, she does not point to any evidence in the record that
supports that contention.

48
experience.” On the other hand, Serri had been preparing AAP’s since 1992 and held
herself out as the University’s expert on AAP’s.
Serri also claims disparate treatment. She argues that she was treated differently
from a high-ranking “white male who made massive job performance errors” that cost the
University “over $6 million” but was “not fired or even demoted.” In support of this
contention, Serri produced a newspaper article that appeared in the Metro (a Silicon
Valley weekly newspaper) in November 2003. There is no evidence the newspaper
article was produced by Defendants in discovery and Kornhauser, Serri’s counsel, failed
to authenticate it in his declaration. In addition, the article is clearly hearsay. Defendants
objected to the article on the grounds of authentication and hearsay; none of the hearsay
exceptions Serri advanced in response to the objection apply.17 We therefore hold that
the newspaper article was inadmissible and the court properly sustained the Defendants’
objections to it. Most importantly, the article does not support the factual assertions for
which it is cited in Serri’s brief. We shall therefore disregard Serri’s arguments based on
the newspaper article.
Serri also argues that Father Locatelli and Joe Sugg, an employee in the
University’s facilities department, made “repeated” stray remarks about her ethnicity and
that “ethnic remarks, even ‘stray remarks’ when coupled with other evidence of pretext
can defeat summary judgment.” But the argument portion of her brief does not state what
those remarks were or tell us where we can find evidence of those remarks in the 5223-
page record. As to this contention, Serri has failed to meet her burden on appeal of

17
Serri argued, incorrectly, that the article was not hearsay because she would
testify about it at trial and that it came in to show her state of mind. In her opposition to
the motions, however, she relied on it to prove the truth of the matter asserted therein, not
her state of mind. She also asserted that it was admissible under exceptions to the
hearsay rule for past recollection recorded, as a prior consistent statement, a business
record, and under the publication exception for historical works, books of science or art,
maps and charts (Evid. Code, §§ 1237, 1236, 1270, 1341). None of these exceptions to
the hearsay rule apply.

49
providing reasoned argument as to each point raised. (People v. Stanley (1995) 10
Cal.4th 764, 793 (Stanley).) We will, nonetheless, address her contentions by
considering statements made in other parts of her brief.
Under the stray remarks doctrine, which has been employed by federal courts and
some California courts, on summary judgment, “a ‘stray’ discriminatory remark that a
court determines is unconnected to the adverse employment action is insufficient
evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded
by the court.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 320 (Sandell).)
In Reid, the Supreme Court held that California courts are not to apply the stray remarks
doctrine because “its categorical exclusion of evidence might lead to unfair results.”
(Ibid., citing Reid, supra, 50 Cal.4th at p. 517.) Instead, such remarks are to be
considered along with all the other evidence in the record in determining whether a
rational inference of discrimination exists. (Sandell, at p. 320.)
In her statement of facts, Serri points to her deposition testimony that Father
Locatelli made a discriminatory remark about her clothing once when he said the shawl
she was wearing looked like a poncho, and that he made an ethnic remark when he told
her he liked her hairstyle better when she blew her curly hair dry because it looked more
relaxed and professional. Serri also relies on her deposition testimony that Father
Locatelli was “abusive” toward her when he met her in public. According to Serri,
instead of saying “ ‘Hi’ ” or asking “ ‘How are you,’ ” he would say, “ ‘What do you
want?’ ” But Serri does not explain how these statements relate to her ethnicity or
national origin. People of many ethnicities and national origins, for example, have curly
hair. Nor do we see anything derogatory in saying her shawl looked like a poncho.
Serri claims Joe Sugg made a discriminatory and demeaning remark to her in 2000
when he showed her a potential site for her new office in a building on the outskirts of
campus. He said, “ ‘It’s a wonderful location, look at all the nice places to eat around
here,’ ” which Serri understood to mean a nearby taqueria. Serri also cites the deposition

50
testimony of Jane Curry in which Curry stated that her (Curry’s) department head told
Curry she would be paid better if she was less outspoken, not divorced, and Catholic.
Serri argues this evidence supports the conclusion that Father Locatelli did not like
women, did not like Latinas, and condoned a discriminatory atmosphere at the
University.18
In our view, this evidence does not demonstrate a discriminatory animus or
motive. At best, even when examined in the aggregate, this evidence raised only a weak
suspicion that discrimination was a basis for Serri’s termination. This weak suspicion
may have sustained Serri’s burden of proving a prima facie case, but it does not amount
to substantial evidence of discrimination necessary to defeat summary judgment.
We conclude that Serri failed to meet her burden of producing substantial evidence
that the University’s stated reasons for firing her were untrue or pretextual, or that the
University acted with a discriminatory animus, such that a reasonable trier of fact could
conclude that the University engaged in intentional discrimination or other unlawful
action. (Cucuzza, supra, 104 Cal.App.4th 1031, 1038.)

E. Second and Tenth Causes of Action: The Trial Court Properly Granted
Summary Adjudication of Serri’s Tortious Discharge and Retaliation in
Violation of the FEHA Claims

Serri’s tenth cause of action alleges that the University terminated her in
retaliation for her “lawful and protected actions in pursuing discrimination, harassment,
and equal pay claims with the EEOC and DFEH.” Her second cause of action for tortious

18
In her statement of facts, Serri also complains that Father Locatelli did not
reprimand Sugg for “repeating a distasteful sexist remark about a woman’s period and
tried to stop Serri’s investigation into the matter.” Contrary to Serri’s assertion, the
record suggests Father Locatelli took her complaint against Sugg seriously and allowed it
to be handled through the Policy 311 process. And although this is mentioned in her
statement of facts, Serri’s brief does not argue that this demonstrated any discriminatory
animus.

51
discharge also alleges that she was fired in retaliation for filing complaints with the
EEOC and DFEH.
Serri argues that the University retaliated against her by removing her AAP duties
on October 19, 2006 (two weeks after she filed her first DFEH claim) and terminating her
on March 7, 2007. Her only contention on appeal regarding these two causes of action,
separate and apart from her argument regarding her discrimination claim, is that “[t]he
close timing between her EEOC filings and her termination is circumstantial evidence
that she was terminated for exercising her public policy right to enforce state and federal
anti discrimination laws.” Loggins v. Kaiser Permanente Internat. (2007) 151
Cal.App.4th 1102 held that a prima facie showing of “temporal proximity, although
sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for
the adverse employment action, does not, without more, suffice also to satisfy the
[employee’s burden] to show a triable issue of fact on whether the employer’s articulated
reason was untrue and pretextual.” (Id. at p. 1112.) Since we have already concluded
that Serri cannot meet her burden of showing that the stated reasons for her termination
were false or pretextual, we reject her contention that the timing in this case, in itself, was
sufficient to create a triable issue regarding her tortious discharge and retaliation claims.

F. Eleventh Cause of Action: The Trial Court Properly Granted
Summary Adjudication of Serri’s Harassment Claim

Serri’s eleventh cause of action alleges harassment in violation of the FEHA (Gov.
Code, § 12940, subd. (j)) by the University, Father Locatelli, McDonald, and Veit on
account of Serri’s national origin, age, and sex.19

19
The complaint alleges that: (1) Father Locatelli harassed Serri by falsely
accusing her of lying, not performing her job, and being incompetent; (2) McDonald and
Veit created a hostile work environment and harassed her by continually and repeatedly
questioning her honesty, and saying and implying that she was a liar and could not be
trusted to perform her job; and (3) McDonald and Veit harassed her by insisting that Veit
sit in and make a record of all of McDonald’s meetings with Serri.

52
Government Code section 12940, subdivision (j), defines “unlawful employment
practice” to include harassment in the workplace based on national origin, sex, and age.
“Under the statute ‘harassment’ in the workplace can take the form of ‘discriminatory
intimidation, ridicule and insult’ that is ‘ “ ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’ ” ’
[Citations.] Moreover, harassing conduct takes place ‘outside the scope of necessary job
performance, conduct presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives.’ (Reno v. Baird (1998) 18 Cal.4th
640, 646 . . . .) ‘Thus, harassment focuses on situations in which the social environment
of the workplace becomes intolerable because the harassment (whether verbal, physical,
or visual) communicates an offensive message to the harassed employee.’ (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706 . . . . [(Roby)])” (Rehmani v. Superior Court
(2012) 204 Cal.App.4th 945, 951 (Rehmani); italics in original.)
Harassment is distinguishable from discrimination under the FEHA.
“[D]iscrimination refers to bias in the exercise of official actions on behalf of the
employer, and harassment refers to bias that is expressed or communicated through
interpersonal relations in the workplace.” (Roby, supra, 47 Cal.4th at p. 707.) As our
high court explained in Reno v. Baird, “Harassment claims are based on a type of conduct
that is avoidable and unnecessary to job performance. No supervisory employee needs to
use slurs or derogatory drawings, to physically interfere with freedom of movement, to
engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives
of personnel management. Every supervisory employee can insulate himself or herself
from claims of harassment by refraining from such conduct. An individual supervisory
employee cannot, however, refrain from engaging in the type of conduct which could
later give rise to a discrimination claim. Making personnel decisions is an inherent and
unavoidable part of the supervisory function. Without making personnel decisions, a
supervisory employee simply cannot perform his or her job duties.” (Reno v. Baird,

53
supra, 18 Cal.4th at p. 646, quoting Janken v. GM Hughes Electronics (1996) 46
Cal.App.4th 55, 63-65 (Janken).) The court explained further “that the Legislature
intended that commonly necessary personnel management actions such as hiring and
firing, job or project assignments, office or work station assignments, promotion or
demotion, performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not attend
meetings, deciding who will be laid off, and the like, do not come within the meaning of
harassment. These are actions of a type necessary to carry out the duties of business and
personnel management. These actions may retrospectively be found discriminatory if
based on improper motives, but in that event the remedies provided by the FEHA are
those for discrimination, not harassment. Harassment, by contrast, consists of actions
outside the scope of job duties which are not of a type necessary to business and
personnel management.” (Reno v. Baird, at pp. 646-647.)
“Whether the conduct of the alleged harassers was sufficiently severe or pervasive
to create a hostile or abusive working environment depends on the totality of the
circumstances. ‘ “These may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” ’ [Citations.] ‘ “Common sense, and an appropriate sensibility to social
context, will enable courts and juries to distinguish between simple teasing or
roughhousing . . . and conduct [that] a reasonable person in the plaintiff’s position would
find severely hostile or abusive.’ ” [Citations.] As in sex-based harassment claims, ‘[t]he
plaintiff must prove that the defendant’s conduct would have interfered with a reasonable
employee’s [fn. omitted] work performance and would have seriously affected the
psychological well-being of a reasonable employee and that [he or she] was actually
offended.’ [Citations.]” (Rehmani, supra, 204 Cal.App.4th at pp. 951-952.)

54
Serri contends the court erred in granting summary adjudication of her harassment
claim because she produced evidence that McDonald falsely accused her of being a liar
and untrustworthy, and that “they” intimidated and humiliated her by insisting that Veit
attend and take notes at Serri’s regular meetings with McDonald. Without citation to
evidence in the record, Serri argues that she “was the only [University] employee
subjected to this type of humiliation” and asserts that she was treated this way because
she is Puerto Rican.
In support of their motions for summary adjudication, both McDonald and Veit
declared that they did not make any hostile or derogatory statements to or about Serri at
their meetings and that they never made any derogatory references to her race, gender,
ethnicity, or other protected status. Although Serri’s separate statement stated that she
“disputed” these facts, none of the evidence she cited created a triable issue on the
question whether McDonald or Veit ever made any derogatory remarks about Serri’s
national origin, age, or sex, or that they engaged in other conduct that constitutes
harassment. Thus, the record is devoid of any evidence that McDonald and Veit engaged
in harassing conduct of the type described in Reno v. Baird and Janken. The conduct
Serri complains of involves McDonald’s decisions about who would attend her meetings
with Serri and how those meetings were conducted. As Reno v. Baird instructs, while
these allegations may involve discrimination (a claim we have already concluded has no
merit), they are not harassment. For these reasons, we hold that the court properly
granted McDonald’s and Veit’s motions for summary adjudication of Serri’s harassment
claim.
As for her harassment claim against Father Locatelli, Serri argues that she
produced evidence that Father “Locatelli and his subordinates, made and approved of
disparaging ethnic remarks about moving her office next to a taqueria[,] . . . criticized her
dress as looking like a poncho and criticized her hair as too curly.” This is the full extent
of her argument regarding this claim. As we have explained, to prevail on her

55
harassment claim, Serri is required to produce evidence that she was subjected to
offensive comments or other abusive conduct that was based on a protected characteristic
(her national origin, age or sex) that was sufficiently severe or pervasive as to alter the
conditions of her employment. In our view, Joe Sugg’s remark in 2000 that there are
“nice places to eat around here” and Father Locatelli’s statements that he liked Serri’s
hairstyle better when she blew her curly hair dry because it looked more relaxed and
professional and that her shawl looked like a poncho are not derogatory or offensive or
the type of statements that “would have interfered with a reasonable employee’s . . . work
performance and would have seriously affected the psychological well-being of a
reasonable employee.” (Rehmani, supra, 204 Cal.App.4th at pp. 951-952.) Moreover,
these three comments, made over the course of six years, were not so pervasive as to
support a claim for harassment. We conclude that the court did not err when it granted
the University’s and Father Locatelli’s motion for summary adjudication of the Serri’s
harassment claim.

G. Third Cause of Action: The Trial Court Properly Granted Summary
Adjudication of Serri’s Equal Pay Act Claim

Serri’s third cause of action alleged a violation of Labor Code section 1197.5, the
California Equal Pay Act (EPA), against the University only. Although Serri’s complaint
did not name one or more “comparators,”20 based on her arguments in the papers below
and on appeal, it appears the only comparator she relies on is Charles Ambelang.
Recovery under the EPA is limited to a two-year period. (Jones v. Tracy School
Dist. (1980) 27 Cal.3d 99, 107.) Although the record contains wage information going
back to 1997, for the purpose of our analysis we begin with October 2004, two years
before Serri filed her wage claim with the DFEH. At that time, Serri made $104,328.48

20
“Comparator” is a term of art in EPA cases; it refers to the person or persons of
the opposite sex whose pay the claimant’s pay is compared to. (Hein v. Oregon College
of Education (9th Cir. 1983) 718 F.2d 910, 912, fn. 2.)

56
per year (all further salary figures are annual earnings) and Ambelang, who worked 11
months per year, made the equivalent of $117,040.17 for full-time work. Between July
2004 and July 2005, Ambelang’s work schedule increased to full time. In July 2005,
Serri received a 3.5 percent merit increase, raising her salary to $107,980.08. Ambelang
received a 4.0 percent merit increase, increasing his pay to $121,721.76. In July 2006,
the University made an equity adjustment to Serri’s salary retroactive to March 2005,
increasing her pay to $118,350.00. Serri also received a 3.5 percent merit increase in
July 2006, raising her salary to $122,492.25. Ambelang, on the other hand, received a
4.0 percent merit increase, increasing his pay to $126,590.63.
Labor Code section 1197.5 provides in relevant part: “(a) No employer shall pay
any individual in the employer’s employ at wage rates less than the rates paid to
employees of the opposite sex in the same establishment for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions, except where the payment is made pursuant
to a seniority system, a merit system, a system which measures earnings by quantity or
quality of production, or a differential based on any bona fide factor other than sex.”
Because the California EPA is nearly identical to the federal Equal Pay Act of 1963 (29
U.S.C. § 206(d)(1)), in the absence of California authority, courts rely on federal
authorities construing the federal statute to interpret analogous provisions of the state
statute and to evaluate claims under the California EPA. (Hall v. County of Los Angeles
(2007) 148 Cal.App.4th 318, 323, fn. 4 (Hall); Green v. Par Pools, Inc. (2003) 111
Cal.App.4th 620, 623 (Green).)
To prevail on her EPA claim, Serri has the burden to prove that “ ‘an employer
pays different wages to employees of opposite sexes “for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2676057. Public record. Not legal advice.