The opinion
Filed 11/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JORGE MARTIN, B303509
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC718199)
v.
BOARD OF TRUSTEES OF THE
CALIFORNIA STATE
UNIVERSITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Monica Bachner, Judge. Affirmed.
Lazarski Law Practice and Bryan J. Lazarski for Plaintiff
and Appellant.
Swerdlow Florence Sanchez Swerdlow & Wimmer, David A.
Wimmer, Lori M. Yankelevits; Shaw Koepke & Satter, Jens B.
Koepke, and Anne M. Huarte for Defendant and Respondent.
_____________________________
This is an appeal from a trial court order granting
Respondent the Board of Trustees of California State University’s
(CSU) summary judgment motion against Appellant Jorge
Martin (Martin). We affirm. Martin has not adduced sufficient
evidence to dispute CSU’s legitimate reason for his termination.
Similarly, he presents insufficient evidence to create a dispute of
fact regarding his hostile work environment claim.
BACKGROUND
I. Employees make complaints against Martin and CSU
investigates
In 2014, CSU hired Martin as the director of university
communications of California State University at Northridge’s
Marketing and Communications Department (the Department).
Martin oversaw a team of three to five employees who produced
outgoing communications for the Department. Martin reported
directly to the associate vice-president of marketing and
communication, Jeff Noblitt.
In March 2016, Shante Morgan-Durisseau, a CSU
employee whom Martin supervised, filed a complaint with CSU’s
Equity and Diversity Department (E&D) against Martin and
Noblitt. Morgan-Durisseau alleged racial discrimination,
harassment, and retaliation by Martin and Noblitt. CSU’s
Executive Order 1096 sets out a policy prohibiting
discrimination, harassment, retaliation, and sexual misconduct,
among other prohibitions. The executive order also defines
procedures for addressing complaints. After conducting an
investigation, E&D concluded that Martin did not violate
Executive Order 1096. Morgan-Durisseau then filed a suit
against CSU on those claims.
During the 2016 fall semester, Martin supervised a
temporary employee, Hansook Oh, from September 2016 to
December 2016. On November 7, 2016, Oh filed a complaint with
E&D alleging that Martin harassed and discriminated against
Oh based on her sexual orientation.
2
Oh complained that Martin made a suggestive comment to
coworker and graphic designer Maggie Sanchez. Oh alleged that
Martin, Sanchez, and another graphic designer Kate Llave were
discussing Halloween costumes when Martin made a comment
about Sanchez dressing as a police officer by saying, “I bet she got
a lot of dollar bills thrown at her that night.” Llave testified that
she was not participating in the conversation at the time Martin
made the comment, but that she overheard what he said.
Oh also complained that Martin wanted to exclude LGBTQ-
related content from the CSUN1 Weekly. As part of CSU’s
commitment to diversity, the Department showcases images of
various demographics, such as people of color, white people, men,
and women. Martin allegedly hesitated to include a story about a
gay, Black couple who are alumni because he feared it would
upset conservative donors. Oh further complained that Martin
kept a baseball bat in his office, and thudded his left palm with it
to imply that he would hit Oh with it when she disagreed with
him on a decision. Finally, Oh complained that Martin said she
“needs to be a little less hungry and a little more humble” in front
of a CSU student.
Martin points us to specific portions of the investigations
and facts about E&D to demonstrate bias, as summarized here.
First, during the investigation, the investigator Alexandra
Pursley transcribed quotes from the marketing and
communications coordinator, Veronica Navarro’s account that
Martin exhibited “machismo” because Martin “feels like women
should be home.” Second, Martin, in his defense, pointed to Oh’s
1 CSUN is a commonly used acronym for the California State
University at Northridge.
3
mental health, and Pursley’s conclusion that Martin’s defense
was “disingenuous and objectionable.” Third, the social media
coordinator, Emily Olson, said she felt Martin’s behavior was
inappropriate on occasion but also stated Martin was “the best
boss [she has] ever had.” E&D also placed Olson’s comment
about Martin being the best boss at the end of a paragraph.
Fourth, CSU employee Olivia Herstein said that Oh was
delusional and that Oh attempted to speak to Herstein about
Martin during the investigation of Oh’s complaint. Fifth, Noblitt
stated to Pursley that “it has come to his attention that Oh had
had ‘multiple conversations with others on the team to try and
influence the investigation’ and that this has ‘affected the culture’
of the Department.” Finally, Martin points us to E&D director
Susan Hua’s testimony that E&D is staffed entirely by women.
After investigating, E&D issued a Complaint Investigation
Report (Oh Report) on March 24, 2017. The Oh Report found
that Martin did not discriminate against or harass Oh. However,
the Oh Report concluded that Martin created a hostile work
environment which violated Executive Order 1096. “When taken
in totality, Mr. Martin’s actions (making a remark of a sexual
nature to Ms. Sanchez, repeatedly commenting on her attire,
discussing females’ physical appearances, making reference to
employees’ personal relationships and Mr. Martin indicating to
Ms. Oh that the inclusion of those in the LGBTQ community is
secondary to concerns as to how some alumni will react to certain
content) amounted to conduct that is sufficiently severe and
pervasive that a reasonable person in Ms. Oh’s shoes could, and
indeed Ms. Oh did consider those actions as creating a hostile
and offensive work environment.” E&D made this determination
based on several factors, including other witnesses reporting the
4
comment about Sanchez’s Halloween costume and other
employees stating that Martin made inappropriate comments
that made them feel uncomfortable. The Oh Report found “that
based on the corroborating accounts of multiple witnesses
including Ms. Oh, Ms. Sanchez, Ms. Llave and Ms. Navarro, it is
more likely than not that Mr. Martin made the alleged comment
about Ms. Sanchez being given money or ‘dollar bills’ when she
told him that she had previously dressed as a police officer for
Halloween.”
On April 17, 2017, Noblitt and the vice-president of
university advancement, Robert Gunsalus, issued a
Memorandum of Counseling to Martin that ordered him to
complete four hours of sensitivity training, and to attend
management coaching sessions with Human Resources.
The Memorandum of Counseling also stated that E&D
determined that Martin created a hostile work environment and
that as a role model and leader, he needed to understand his
impact on others and ensure he treated “all members of the
university community with respect, avoiding any situation that
could be construed as harassing, discriminatory, or retaliatory.”
The Memorandum of Counseling concluded that “[t]here must be
immediate and sustained changes” in Martin’s interpersonal
interactions and that a failure to change “may have a negative
impact to [his] position with the university.”
Oh’s contract with the Department was not renewed at the
end of 2016, and she was not employed by CSU when the
Oh Report issued. After she was no longer employed, on May 3,
2017, Oh complained via e-mail to the president of the Local 312
union for campus employees. She outlined her complaints
against Martin and how he “is not facing any real consequences
5
for his actions.” Oh asked if she could “get any support from the
union since [she] was a union member during that time.”
The record is silent regarding what if anything the union did in
response to Oh’s inquiry.
On October 27, 2017, Sanchez filed a complaint against
Martin. In the context of Oh’s previous complaint, Sanchez was
the employee who reported that Martin made a comment related
to dollar bills being thrown at her because of her Halloween
costume. In her own complaint, Sanchez alleged different
misconduct. Sanchez accused Martin of harassment because he
commented on her dress by asking her, “[a]re you going to prom?”
and asking her, “[w]hat is the double-income-no-kids couple up to
this weekend?” Sanchez also claimed Martin was retaliating
against her for being a witness in Oh’s complaint.
On February 15, 2018, E&D issued its investigation report
for Sanchez’s complaint (Sanchez Report) concluding that Martin
did not violate Executive Order 1096. Pursley stated in the
report that “[t]his conclusion is not intended to condone or
minimize [Martin’s] conduct, which falls below the standard
reasonably expected of any employee and particularly one in a
leadership position.”
On February 22, 2018, E&D issued a Notice of
Investigation Outcome (Sanchez Notice) to Martin and copied
associate vice-president of human resources, Kristina de la Vega,
and Gunsalus. The Sanchez Notice was signed by E&D director,
Hua. In the Sanchez Notice, Hua stated that Martin’s conduct,
“while inappropriate and unprofessional, did not constitute
sexual harassment, gender-based harassment or retaliation.”
The Sanchez Notice also prohibited Martin from retaliating
against the investigation’s participants and requested that
6
Martin exercise discretion in disclosing information from the
investigation.
II. May 2018 newspaper articles
On May 2, 2018, the CSUN’s student newspaper, the
Sundial, published an article detailing Morgan-Durisseau’s
lawsuit against CSU based on her complaint against Martin and
Noblitt. At the time the article was published, Morgan-
Durisseau was no longer employed by CSU. While the article
mentions Martin, it does not mention Noblitt, even though he
was named in the lawsuit. CSU declined to comment other than
stating that the lawsuit had no merit and that CSU was
committed to ensuring a positive work environment. Noblitt and
Gunsalus instructed Martin not to speak publicly about the
article regarding the lawsuit.
On May 9, 2018, Oh published an opinion piece titled, “How
to deal with harassment in your future workplace.” While not
naming Martin, the article stated that Oh filed “a complaint of
harassment against a certain supervisor at the CSUN
Department of Marketing and Communications.” The article
ended with hashtags: “#MatadorForLife #CSUN
#MeTooHigherEd #TimesUp #NotAnymore #YesAllWomen
#HarassmentsStupid #TryMe #ComeAtMeBro
#FeelingHellaGood.”
On May 9, 2018, Martin met with de la Vega and CSU’s
legal counsel Ryan Eskin. Eskin and de la Vega told Martin that
he should “keep [his] head down, work hard, and as time . . . will
pass, the stench would go away.”
CSU proffered evidence that CSU’s response to the articles
and its directives towards Martin were part of its standard
practice when CSU is involved in litigation or when a CSU
7
employee is in the media. De la Vega testified that CSU’s
position has been that CSU does not comment on personnel
matters. Noblitt testified that there were other instances where
a CSU employee was publicly criticized, and they, like Martin,
were expected to follow the advice of counsel.
After the Sundial published the May 2, 2018 article, several
individuals, including alumni, wrote e-mails to the university
president, Dianne Harrison, expressing concern about CSU
having a culture of harassment against women and women of
color. Oh testified in deposition that she forwarded the article
regarding Morgan-Durisseau to some individuals who wrote
letters, such as Gina Masequesmay, the chair of the Asian
American Studies Department. Oh testified that Masequesmay
decided to write Harrison a letter.
III. Martin’s conversations with Emily Olson
After the Sundial published the articles, Martin spoke to
Olson, Martin’s subordinate, about both Oh’s May 9, 2018 article
in the Sundial and Olson’s statements in the E&D investigation
regarding Oh’s complaint. Martin told Olson that Oh’s Sundial
article painted him “guilty as charged” of every allegation Oh
made against him. Martin also told Olson that the E&D hostile
work environment finding was “highly questionable.” He further
told Olson that the E&D investigations were biased against him.
Olson testified in deposition that Martin seemed very angry with
Oh and Morgan-Durisseau and said they could go back to their
“pathetic lives.” Olson also stated that Martin asked if she was
on his side about 10 times, and it made Olson uncomfortable.
Olson met with the media relations director, Carmen
Ramos Chandler, about her conversation with Martin. Olson
testified that she spoke to Chandler because Olson felt
8
threatened and did not feel safe at work. Olson further testified
that she wanted to talk to someone to cover herself in case
something happened to her. Chandler then conveyed her
conversation with Olson to Hua. Chandler also told Hua that
women in Martin’s department were unhappy and worried that
their jobs would be threatened if they came forward. Hua then
conveyed this information to de la Vega and Noblitt.
IV. Noblitt interviews employees about Martin’s conduct
On May 12, 2018, Noblitt asked Olson about her
conversation with Martin. Olson told Noblitt that she did not
think that the situation at the office was good. Olson told Noblitt
that she felt Martin had grouped her with Oh and Morgan-
Durisseau and that Martin mentioned that he had gotten “in
trouble for something [Olson] said in an interview” with E&D.
Olson said she called in sick the next day and applied for jobs.
She decided, however, to stay in her job and talked to Martin.
Olson told Martin that he should not talk to her about Oh and
Morgan-Durisseau’s complaints again. Olson said she felt better
after that conversation, but still felt that she was vulnerable.
In deposition, Olson testified it may have been more than
just her complaint that got Martin fired. She also testified that
she sent a text message to Martin on June 12, 2018 saying, “Hey.
Don’t know what to say . . . hope you are okay.”
Noblitt then spoke to Andrea Shelkey, an administrative
analyst for the Department. Shelkey told Noblitt that Martin
speaking about the articles was inappropriate and made her
uncomfortable. Noblitt also spoke to Kevin Lizaragga, the
director of University Marketing, who is another supervisor in
the Department. Lizaragga reported that additional employees
9
Llave, Meredith Atwater, and Navarro all had concerns about
Martin.
V. CSU terminates Martin
Noblitt testified that after speaking with employees while
investigating Olson’s complaint, he determined that Martin could
not be an effective department leader because he disregarded
CSU’s direction regarding professionalism; staff could not work
with him; and subordinates were intimidated and threatened by
him.
Noblitt and de La Vega testified that both of them decided
to terminate Martin after they met to discuss his conduct on or
around May 18, 2018. For a May 22, 2018 meeting, Gunsalus,
de la Vega, Noblitt, Eskin, the university advancement director,
Veronica Grant, and Harrison’s chief of staff, Jill Smith, received
an e-mail meeting invitation. The May 22 meeting concerned an
“HR matter,” but the topic of the meeting and the actual
participants in the meeting are unclear.
On June 6, 2018, de la Vega and Noblitt met with Martin to
inform him that CSU would be terminating him. Prior to this
meeting, CSU had not communicated to Martin its decision to
terminate him. In the meeting, Noblitt and de la Vega offered to
characterize the termination as a resignation if Martin signed a
severance agreement that included a release. De la Vega
prepared notes in advance of the meeting, and delivered the
comments to Martin verbally. De la Vega’s notes provide, in part:
“[A]s Administrators we are expected to rise above these matters
and ensure we do what is best for the university. [¶] It has
become apparent to us that you are not able to focus on your work
and for the best interest of the university, we are at a point in
10
time in which we need to make a change.” Martin did not accept
the offer to resign, so CSU terminated Martin.
On June 6, 2018, CSU issued a termination letter to Martin
that did not specify the basis for his termination. On June 25,
2018, Martin requested that CSU reconsider his termination.
Thereafter, Martin and his counsel met with the senior employee
relations analyst, Sophia Vega, and de la Vega. Martin admitted
that he spoke to his immediate direct reports, two students, and
others, including Lizaragga and Shelkey about the Sundial
articles. In its letter declining to rehire Martin, CSU stated the
basis for terminating Martin was that his “conduct negatively
impacted [his] ability to lead [his] team within Marketing and
Communications. [He was] no longer able to exercise discretion
and clear managerial judgment and decision-making.”
VI. Procedural history
On August 16, 2018, Martin filed a complaint against CSU
alleging gender, race, color, and sexual orientation discrimination
under the Fair Employment and Housing Act (FEHA); race,
gender, and sexual orientation harassment; and failure to
prevent harassment and discrimination. Martin claimed he
experienced discrimination and harassment because he is a
middle-aged, light-skinned, Mexican-American, heterosexual, and
cisgender male. As to his harassment claim, Martin alleged that
“Defendant CSU created a hostile work environment and
subjected Plaintiff to unwanted harassment on the basis of his
race and sex/gender from May 2, 2018 until his termination on
June 6, 2018.”
On August 1, 2019, CSU filed a motion for summary
judgment or summary adjudication. On October 1, 2019, Martin
filed an opposition and objections to evidence. On October 10,
11
2019, CSU filed its reply and objections to evidence. The trial
court heard argument on October 15, 2019 and took the matter
under submission. The trial court entered the order granting
summary judgment on October 28, 2019. The trial court entered
the judgment on November 22, 2019.
Martin timely appealed.
DISCUSSION
I. Standard of review
“[F]rom commencement to conclusion, the party moving for
summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that he is entitled to
judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for
summary judgment bears an initial burden of production to make
a prima facie showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production, he causes a
shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the
existence of a triable issue of material fact.” (Ibid.)
When the moving party is a defendant, it must show that
the plaintiff cannot establish at least one element of the cause of
action. (Aguilar, supra, 25 Cal.4th at p. 853.) The defendant
must “present evidence, and not simply point out that the
plaintiff does not possess, and cannot reasonably obtain, needed
evidence.” (Ibid., fn. omitted.) Thus, “the defendant must
‘support[]’ the ‘motion’ with evidence including ‘affidavits,
declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice’ must or may ‘be taken.’
(Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need
not, present evidence that conclusively negates an element of the
12
plaintiff’s cause of action. The defendant may also present
evidence that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence—as through admissions by
the plaintiff following extensive discovery to the effect that he
has discovered nothing.” (Aguilar, at p. 855.)
On appeal from a summary judgment ruling, we review the
record de novo to determine whether triable issues of material
fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th
763, 767.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Id. at p. 768.)
“In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
elements of the claim, (2) the motion to determine if it establishes
facts justifying judgment in the moving party’s favor, and (3) the
opposition—assuming movant has met its initial burden—to
‘decide whether the opposing party has demonstrated the
existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.)
“We need not defer to the trial court and are not bound by the
reasons in its summary judgment ruling; we review the ruling of
the trial court, not its rationale.” (Ibid.) Thus, a reviewing court
“will affirm a summary judgment if it is correct on any ground
that the parties had an adequate opportunity to address in the
trial court, regardless of the trial court’s stated reasons.”
(Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394,
1402.)
We review a trial court’s ruling on evidentiary objections
for an abuse of discretion. There is a split of authority on
evidentiary objections made in connection with a motion for
13
summary judgment, however. The Sixth District Court of
Appeal, and to a more limited degree the First District Court of
Appeal, have held that some or all written evidentiary objections
should be reviewed de novo. (Pipitone v. Williams (2016)
244 Cal.App.4th 1437, 1450–1451; Strobel v. Johnson & Johnson
(2021) 70 Cal.App.5th 796, 816–817.) We agree with the majority
of courts which have held that the abuse of discretion standard
applies. (See, e.g., Schmidt v. Citibank, N.A. (2018) 28
Cal.App.5th 1109, 1118 [“We will follow the weight of authority
and apply the abuse of discretion standard”].)
II. The trial court correctly granted summary judgment
on Martin’s discrimination claims
a. The applicable law for discrimination claims
FEHA prohibits an employer from subjecting an employee
to an adverse employment action based on the employee’s
protected status. (Gov. Code, § 12940, subd. (a).) In evaluating
claims of discrimination under FEHA, California courts apply the
burden-shifting approach set forth in McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792. (Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 214 (Harris); Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 354 (Guz).)
Under this approach, if the plaintiff establishes a prima
facie case supporting his or her discrimination claim, the burden
of production shifts to the employer to rebut the presumption of
discrimination by offering a legitimate, nondiscriminatory reason
for the adverse employment action. (Harris, supra, 56 Cal.4th at
p. 214; Guz, supra, 24 Cal.4th at pp. 355–356.) To state a prima
facie case of gender, race, color, or sexual orientation
discrimination under FEHA, a plaintiff must show that: “(1) he
was a member of a protected class, (2) he was qualified for the
14
position he sought or was performing competently in the position
he held, (3) he suffered an adverse employment action . . . and
(4) some other circumstance suggests discriminatory motive.”
(Guz, supra, 24 Cal.4th at p. 355.) Thus, a plaintiff must
establish a causal nexus between the adverse employment action
and his protected characteristic. (See ibid.; see also Gov. Code,
§ 12940, subd. (a).)
An employer may meet its initial burden in moving for
summary judgment by presenting evidence that one or more
elements of a prima facie case are lacking, or the employer acted
for a legitimate, nondiscriminatory reason. (Zamora v. Security
Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32 (Zamora);
Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1181.) A legitimate, nondiscriminatory reason is one that
is unrelated to unlawful bias and, if true, would preclude a
discrimination finding. (Guz, supra, 24 Cal.4th at p. 358.) “[I]f
nondiscriminatory, [the employer’s] true reasons need not
necessarily have been wise or correct.” (Ibid.)
If the employer puts forth a legitimate basis for the adverse
employment action, the burden of production shifts to the
plaintiff to present evidence creating a triable issue of fact
showing the employer’s stated reason was a pretext for unlawful
animus in order to avoid summary judgment. (Zamora, supra,
71 Cal.App.5th at p. 32; Husman v. Toyota Motor Credit Corp.,
supra, 12 Cal.App.5th at p. 1182.) In addition, FEHA does not
require proof that discriminatory animus was a “but for” cause of
an adverse action, only that it was a “substantial motivating
factor.” (Harris, supra, 56 Cal.4th at pp. 229–232.) “Still, there
must be evidence supporting a rational inference that intentional
discrimination, on grounds prohibited by the statute, was the true
15
cause of the employer’s actions.” (Guz, supra, 24 Cal.4th at
p. 361.) Ultimately, “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 [or retaliatory].” (Ibid.)
b. CSU established a legitimate reason for the
termination
The trial court held that CSU’s evidence precluded Martin
from demonstrating a prima facie case of discrimination as
Martin could not demonstrate that he was performing
competently or that discriminatory animus could be inferred.
Alternatively, the trial court also concluded that even assuming
that Martin could establish a prima facie case, CSU submitted
unrebutted evidence that CSU terminated Martin for a
legitimate, nondiscriminatory reason. We affirm the trial court’s
alternative reasoning that CSU established a legitimate basis for
the termination, which Martin failed to rebut.
In summary, CSU’s legitimate basis for the termination
includes the results of various investigations. Regarding Oh’s
complaint, CSU initially found that Martin created a hostile work
environment based on gender and counseled him to avoid
harassing and retaliatory conduct. Thereafter, regarding
Sanchez’s complaint, CSU found that Martin did not discriminate
or retaliate, but nonetheless concluded that his conduct fell below
the standard reasonably expected of an employee and supervisor.
CSU again warned Martin against retaliating. Finally, CSU
terminated Martin after he spoke to Olson about the Oh Report
and asked Olson if she was on his side. In this last investigation,
additional employees expressed concern about Martin’s ability to
16
manage the Department. The trial court accurately summarized
CSU’s legitimate basis that Martin “created an intimidating work
environment and demonstrated [Martin’s] failure to make
sustained changes to his conduct.”
Martin does not dispute that CSU put forth evidence that
the decision to terminate him was based on nondiscriminatory
factors. Instead, Martin maintains that he satisfied his burden of
showing a dispute of material fact regarding CSU’s rationale for
terminating him. Consequently, Martin argues that he adduced
evidence that CSU’s reasons for terminating him were pretextual
and unworthy of credence. (See Guz, supra, 24 Cal.4th at p. 357.)
However, as explained below, the record does not support
Martin’s arguments.
c. Martin fails to submit evidence that creates a
dispute of material fact as to pretext
i. Martin cannot point to any shifting
rationales for his termination
Martin erroneously claims that CSU did not proffer a
consistent basis for his termination. Initially, Martin wrongly
claims that he has evidence of pretext because his termination
letter did not identify the reason for his termination. Martin
points us to no authority that requires the reason for terminating
an at-will employee to be in writing. In addition, evidence of
pretext requires “ ‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate 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 v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1005
17
(Hersant).) CSU simply choosing to refrain from listing the basis
for the termination in this letter falls short of establishing these
incoherencies or contradictions. (Ibid.) Moreover, CSU did
inform Martin of the basis for his termination in a meeting with
de la Vega and Noblitt prior to giving him this termination letter.
Further, regarding proof of CSU’s purportedly shifting
bases for his termination, Martin points to de la Vega’s notes
from his meeting with Noblitt and de la Vega predating his
termination letter. In this meeting, CSU informed Martin that
he was being terminated. De la Vega’s notes emphasize that
Martin was “not able to focus on [his] work.” This statement,
however, tracks with CSU’s basis in its letter declining to rehire
Martin, that Martin’s “conduct negatively impacted [his] ability
to lead [his] team within Marketing and Communications. [He]
[was] no longer able to exercise discretion and clear managerial
judgment and decision-making.” De la Vega’s claim that Martin
was unable to focus on work is consistent with CSU’s final basis
for termination—that Martin was unable to be an effective
manager.
Moreover, Martin’s reliance on Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686 (Mamou) is misplaced.
In Mamou, the Sixth District observed that defendant “never
rested on a single coherent explanation for its firing of Mamou,
and that several if not all of its explanations were, to put it
mildly, questionable.” (Id. at p. 716.) There, the defendant told
Mamou that he was being terminated for “operating a competing
business while []working for Trendwest,” but then later claimed
Mamou was being terminated for theft because he “stole”
Trendwest’s trademark. Defendant also claimed it detected “a
further larceny.” (Id. at p. 718.) Here, in contrast, CSU never
18
provided inconsistent or incoherent reasons for terminating
Martin.
Finally, Martin also claims pretext because Noblitt did not
speak to him prior to informing Martin that he would be
terminated. However, as an at-will employee, Martin had no
right to a hearing or to be informed of the allegations against
him. (See, e.g., McGrory v. Applied Signal Technology, Inc.
(2013) 212 Cal.App.4th 1510, 1536 (McGrory).)
ii. Martin has not established a dispute of
fact regarding whether CSU’s internal
investigation was pretextual
Martin argues that Noblitt did not do enough to verify the
truth of the employee statements about Martin. However,
Martin cannot merely show that CSU’s decision could have been
subject to further verification; instead, Martin must show that
there were contradictions or incoherencies in CSU’s proffered
reason. (Hersant, supra, 57 Cal.App.4th at p. 1005.)
Martin attempts to create a dispute of fact by pointing to
Olson’s testimony regarding her complaint that directly preceded
CSU terminating Martin. Martin claims pretext because Olson
testified she thought she spoke to Chandler, a CSU director, in
confidence. However, Martin cannot claim that Chandler
discriminated against him by simply reporting an employee’s
complaint of Martin. Martin also points to Olson’s belief that it
may have been more than just her complaint that got Martin
fired, but this statement is both speculative and entirely
irrelevant to pretext. Martin also argues that Olson’s
posttermination text message to Martin on June 12, 2018 saying,
“Hey. Don’t know what to say . . . hope you are okay” is evidence
of pretext. Regarding this text, Olson was his former supervisee
19
who had no role in terminating him, so her statements
expressing concern for him do not undermine the internal
investigation.
Martin also attempts to create a dispute of fact by pointing
to Llave testifying that she was only a bystander when she heard
Martin make a comment about Sanchez’s Halloween costume.
However, whether Llave was a participant or a witness to the
conversation does not undermine Llave’s statement or the
investigation. Martin does not argue that Llave was unable to
hear the conversation, and Llave said she heard the conversation.
Similarly, Martin attempts to find fault with Lizarraga’s and
Shelkey’s statements to Noblitt. Shelkey told Noblitt that it was
inappropriate for Martin to speak to her about the articles and
that this conversation made her uncomfortable. Lizaragga
reported that additional employees Llave, Atwater, and Navarro
all had concerns about Martin. However, Martin points to
nothing undermining their statements.
In any event, Martin has not demonstrated any
incoherencies or contradictions in this internal investigation to
establish potential pretext. (Hersant, supra, 57 Cal.App.4th at
p. 1005.)
iii. Martin and Oh are not similarly situated
Martin argues that Oh was permitted to rally people to her
side while E&D investigated her complaint. Martin further
argues he was silenced and ultimately fired for speaking about
the investigations and Sundial articles. To establish “pretext in
this manner,” Martin must show that Oh was “similarly situated”
to him. (Wills v. Superior Court (2011) 195 Cal.App.4th 143,
172.) He cannot do so.
20
McGrory is instructive. There, a white male employee
claimed that he was terminated for the same misconduct for
which a female employee escaped discipline, based on the
recommendation of a biased female investigator. (McGrory,
supra, 212 Cal.App.4th at p. 1535.) The court held that to create
an inference of discrimination under this theory, “it must appear
‘that the misconduct for which the employer [disciplined] the
plaintiff was the same or similar to what a similarly situated
employee engaged in, but that the employer did not discipline the
other employee similarly.’ ” (Ibid.) “No inference of
discrimination reasonably arises when an employer has treated
differently different kinds of misconduct by employees holding
different positions.” (Id. at pp. 1535–1536.)
Here, Martin was a manager and Oh was a temporary
subordinate. Given that CSU explained that Martin failed to be
an effective leader, this distinction is particularly meaningful
here, as Oh had no management responsibilities. (See McGrory,
supra, 212 Cal.App.4th at pp. 1535–1536.)
Moreover, CSU found that Martin created a hostile work
environment and cautioned him to refrain from harassing and
retaliating. After receiving this admonition and others, Martin
spoke to Olson, his subordinate, questioned CSU’s hostile work
environment finding to her, and then repeatedly asked her if she
was on his side. In contrast, Oh discussed her complaint against
Martin with coworkers. Martin’s pattern of misconduct is not
comparable to Oh’s single incident. Accordingly, with Martin and
Oh, CSU has “treated differently different kinds of misconduct by
employees holding different positions.” (See McGrory, supra,
212 Cal.App.4th at pp. 1535–1536.)
21
iv. Martin fails to produce substantial
evidence of any bias in the E&D
investigation
Martin argues that Pursley’s E&D investigation of Oh’s
complaint was biased and that E&D participated in the decision
to terminate Martin. These arguments fail to establish pretext.
First, as the trial court found, Martin failed to proffer any
evidence that E&D was involved in his termination decision.
Martin only submits one e-mail showing that on or about May 22,
2018, a meeting took place involving Noblitt, de la Vega,
Harrison, Eskin, Gunsalus, Smith, and Grant. However, none of
these employees work for E&D. Moreover, it is unclear if the
CSU employees even discussed Martin at this meeting.
In addition, the only evidence in the record establishes that
Noblitt and de la Vega decided to terminate Martin four days
before this meeting.
Second, to the extent that Martin argues that CSU relied,
in part, on the E&D investigations to terminate him, Martin fails
to demonstrate any pretext or animus in the E&D investigations.
Martin points to E&D director Hua communicating the results of
the E&D investigation concerning Sanchez to de la Vega and
Gunsalus. However, reporting internal investigations to Human
Resources and one of Martin’s supervisors is not evidence of
discrimination.
Similarly, Martin’s claim that Pursley’s E&D investigation
was faulty does not create a reasonable inference of pretext.
Martin fails to articulate any specific instances where the record
establishes bias. Martin claims that Pursley badgered witnesses
with leading questions until they answered, but he fails to cite to
any specific evidence and only cites to the entire investigation
22
report. Martin does accurately identify that an employee accused
him of “machismo” in the E&D investigation. However, simply
transcribing an employee’s comment does not taint E&D’s
investigation. Martin also takes issue with E&D placing Olson’s
statement that “Martin was the best boss she ever had” at the
end of a paragraph in its report. While it is possible to quibble
with the placement of this phrase in the report, such stylistic
choices are not evidence of pretext. (Hersant, supra,
57 Cal.App.4th at p. 1005.) Martin also argues pretext because
Pursley concluded Martin’s comment about Oh’s mental health
was “disingenuous and objectionable.” However, Martin does not
identify any evidence that Pursley’s comment was cover for any
discrimination. In fact, Martin appears to concede that he
commented about Oh’s mental health.
Martin also posits a theory that Oh colluded with other
employees to lie to Pursley. While there is evidence that Oh
spoke to employee Herstein while the investigation was ongoing,
Herstein was not a witness to any act, such as the Halloween
costume comments, for which CSU disciplined Martin. Moreover,
other than Herstein, Martin does not point to any evidence
showing who else Oh spoke to during the investigation, whether
any such individuals were witnesses in the investigation, or any
reason to suggest any of them made false statements about
Martin. Relatedly, Martin does not undermine E&D’s conclusion
that he likely made the comment about Sanchez’s Halloween
costume, given that there were multiple corroborating witnesses
and others who stated that Martin made inappropriate comments
before. Accepting Martin’s theory would require us to conclude
that there was a larger conspiracy taking place where Oh, a
temporary subordinate, convinced multiple employees to collude
23
and lie about Martin. This theory rests on “mere speculation,
conjecture, or fantasy.” (McGrory, supra, 212 Cal.App.4th at
p. 1537.)
In addition, Martin asserts that E&D is headed and staffed
by women and argues that pretext follows. On this point, Martin
does not offer context as to the number of employees at E&D or
how many total women work there, so we cannot discern the
strength of this argument. “[S]mall or incomplete data sets and
inadequate statistical techniques” are examples of weak
statistical evidence. (Watson v. Ft. Worth Bank and Trust (1988)
487 U.S. 977, 996–997 (Watson); Carter v. CB Richard Ellis, Inc.
(2004) 122 Cal.App.4th 1313, 1325 (Carter).)
Even accepting Martin’s claims that Pursley’s interview
methods were imperfect, he fails to offer any evidence of
investigatory flaws establishing possible pretext. (Hersant,
supra, 57 Cal.App.4th at p. 1005.)
v. Martin’s statistical evidence is not
probative of discriminatory motive
Martin sought to admit the following evidence: “Since
2011, 14 complaints alleging violations of CSU Executive Order
1096 have been sustained against male employees, resulting in
10 terminations; only one has been sustained against a female
employee, and CSU did not terminate her.” While the trial court
excluded this evidence as irrelevant because E&D was not
involved in terminating Martin, we need not decide whether the
trial court abused its discretion in its ruling because the evidence
Martin seeks to admit fails to create a dispute of fact.
Using statistical evidence to prove discriminatory intent in
disparate treatment cases “must meet a more exacting standard.”
(Foroudi v. The Aerospace Corporation (2020) 57 Cal.App.5th 992,
24
1009 (Foroudi).) “ ‘ “[T]o create an inference of intentional
discrimination, statistics must demonstrate a significant
disparity and must eliminate nondiscriminatory reasons for the
apparent disparity.” ’ ” (Ibid.) A plaintiff may not rely on a
statistical sampling that contains data that is irrelevant to the
plaintiff’s situation. (Guz, supra, 24 Cal.4th at p. 367.)
Here, Martin seeks to submit incomplete data. (See
Watson, supra, 487 U.S. at pp. 996–997; Carter, supra,
122 Cal.App.4th at p. 1325.) Most importantly, the data does not
show how many total complaints were made against both female
and male employees. Martin’s data includes only the number of
sustained findings. Without knowing the total number of
complaints, a fact finder cannot compare the results or patterns
for any investigations regarding men and women. Accordingly,
the evidence is woefully incomplete and “does not meet the more
exacting standard required to raise an inference of discrimination
in a disparate treatment case.” (Foroudi, supra, 57 Cal.App.5th
at p. 1009.)
vi. Martin’s evidence of CSU’s commitment to
diversity does not create a triable issue of
discriminatory motive
CSU has articulated a general commitment to diversity and
uses images of diverse individuals in public materials. Martin
argues that this diversity is evidence of pretext against him.
However, establishing pretext requires specific and substantial
evidence. (Morgan v. Regents of University of California (2000),
88 Cal.App.4th 52, 69.) This general evidence of CSU’s public
materials together with its commitment to diversity does not
provide sufficient insight into the motivations of Noblitt or de la
Vega, the individuals who terminated Martin. This evidence
25
when read within the record “as a whole” is insufficient to create
a reasonable inference of discriminatory motive. (Guz, supra,
24 Cal.4th at p. 361.)
d. Martin fails to produce evidence that Oh was a
significant participant in the decision to
terminate Martin
We further conclude that Martin cannot prevail under the
“cat’s paw” theory of liability because he fails to show that Oh
significantly participated in the decision to terminate Martin.
Under the cat’s paw doctrine, “ ‘[i]f [the formal decision
maker] acted as the conduit of [an employee’s] prejudice—his
cat’s paw—the innocence of [the decision maker] would not spare
the company from liability.’ ” (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 542 (Reid) [quoting Shager v. Upjohn Co. (7th
Cir. 1990) 913 F.2d 398, 402].) Under this theory, Martin must
proffer evidence “that a significant participant in an employment
decision exhibited discriminatory animus.” (DeJung v. Superior
Court (2008) 169 Cal.App.4th 533, 551.)
Here, even assuming Oh harbored discriminatory animus,
Martin points to no evidence that Oh played a significant role in
deciding to terminate him. First, Oh was no longer employed at
CSU at the time of Martin’s termination. Second, as detailed
above, there is no evidence that CSU terminated Martin because
of the content of Oh’s Sundial article. As such, Oh was not a
significant participant in any decisionmaking process.
Martin incorrectly analogizes this case to Russell v.
McKinney Hosp. Venture (5th Cir. 2000) 235 F.3d 219, where the
decision maker feared for her job because a biased employee
pressured the hospital to dismiss plaintiff. There, the chief
executive officer’s son of the employer’s parent company exerted
26
leverage and was thus “not an ordinary coworker.” (Id. at
pp. 226–228.) Martin claims that Oh exerted similar influence
and leverage over Noblitt because Noblitt fired Martin to appease
Oh so that Noblitt would not be the target of the next Sundial
article. Even setting aside that Oh was no longer employed at
CSU, Martin points to no evidence that creates a reasonable
inference that Noblitt terminated Martin for this speculative
reason. Martin further claims that Oh, a nonemployee at the
time, exerted influence by asking some individuals to write
letters to the president’s office expressing concern about the
culture at CSU. Even assuming this to be true, there is no
evidence that the content of the Sundial articles or Oh’s request
for letters had any effect on CSU’s decision to terminate Martin.
Finally, Martin fails to proffer evidence that Oh’s union
complaint influenced CSU’s decision to terminate him, so this
theory also fails. A “party ‘cannot avoid summary judgment by
asserting facts based on mere speculation and conjecture, but
instead must produce admissible evidence raising a triable issue
of fact.’ ” (Dollinger DeAnza Associates v. Chicago Title Ins. Co.
(2011) 199 Cal.App.4th 1132, 1144–1145.) Martin fails to do so.
Accordingly, Martin cannot prevail under the cat’s paw theory.
III. The trial court correctly granted summary judgment
on Martin’s FEHA harassment claims
a. Applicable law to FEHA harassment claims
To establish a prima facie case of unlawful harassment
under FEHA, a plaintiff must show “(1) he was a member of a
protected class; (2) he was subjected to unwelcome . . .
harassment; (3) the harassment was based on [the plaintiff’s
membership in an enumerated class]; (4) the harassment
unreasonably interfered with his work performance by creating
27
an intimidating, hostile, or offensive work environment; and
(5) [CSU] is liable for the harassment.” (Thompson v. City of
Monrovia (2010) 186 Cal.App.4th 860, 876 (Thompson).) CSU is
liable only “if the entity, or its agents or supervisors, knows or
should have known of this conduct and fails to take immediate
and appropriate corrective action.” (Gov. Code, § 12940,
subd. (j)(1).)
A showing that harassment created a hostile work
environment requires a showing “ ‘that the defendant’s conduct
would have interfered with a reasonable employee’s work
performance and would have seriously affected the psychological
well-being of a reasonable employee.’ ” (Aguilar v. Avis Rent A
Car System, Inc. (1999) 21 Cal.4th 121, 130–131; see also Gov.
Code, § 12923, subds. (a) & (b).) “The law prohibiting
harassment is violated ‘[w]hen the workplace is permeated with
discriminatory intimation, ridicule and insult that is
“ ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.’ ” ’ ” (Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 263 (Nazir).)
b. Martin fails to create a triable issue of material
fact as to his FEHA harassment claim
The trial court determined that Martin’s FEHA
harassment claim was limited to events occurring from May 2,
2018 to June 6, 2018 based on the allegations of the complaint.
Martin only alleged that the publication of the Sundial articles
and CSU’s reaction to those articles are what constituted
harassment. We agree with the trial court that the pleadings
limit Martin’s theory of liability. We further conclude that even
considering additional conduct prior to May 2, 2018, Martin fails
28
to create a material dispute of fact that he was harassed based on
any protected characteristic.
The pleadings play a key role in a summary judgment
motion and “ ‘ “set the boundaries of the issues to be resolved at
summary judgment.” ’ ” (Nativi v. Deutsche Bank National Trust
Co. (2014) 223 Cal.App.4th 261, 289.) “A party may not oppose a
summary judgment motion based on a claim, theory, or defense
that is not alleged in the pleadings,” and “[e]vidence offered on an
unpleaded claim, theory, or defense is irrelevant because it is
outside the scope of the pleadings.” (California Bank & Trust v.
Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3.)
Martin’s complaint alleged that “Defendant CSU created a
hostile work environment and subjected Plaintiff to unwanted
harassment on the basis of his race and sex/gender from May 2,
2018 until his termination on June 6, 2018.” The allegations in
the complaint only put CSU on notice that the alleged
harassment took place during this period. (See Jacobs v.
Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th
438, 444.) Nor did Martin seek to amend his complaint to allege
conduct prior to May 2, 2018. (See Aleksick v. 7-Eleven,
Inc. (2012) 205 Cal.App.4th 1176, 1186.) Thus, Martin cannot
now claim that conduct prior to May 2, 2018 constituted
additional harassing conduct. Accordingly, we consider whether
the Sundial articles and CSU’s response to the articles qualified
as harassment.
Martin’s harassment claim fails for several reasons. First,
Martin contends that the hashtag “#comeatmebro” in Oh’s article
was harassment based on him being male. However, the gender-
based nature of this hashtag is ambiguous at best, and the article
did not mention Martin by name. Here, a single hashtag, which
29
was part of a series of neutral or anti-sexual harassment
hashtags (#MatadorForLife #CSUN #MeTooHigherEd #TimesUp
#NotAnymore #YesAllWomen #HarassmentsStupid #TryMe
#ComeAtMeBro #FeelingHellaGood) is not sufficiently severe or
pervasive to constitute gender harassment. Our Supreme Court
has even observed that “the term ‘bitch’ is not so sex-specific and
derogatory that its mere use necessarily constitutes harassment
because of sex.” (Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264, 282–284, 295.) Further, Martin argues
that women of color at the Department labelled CSU as a “boys
club,” but Martin does not identify anywhere in the record that
anyone made this comment. As noted above, Navarro’s comment
to Pursley that Martin exhibited “machismo” was not made to
Martin and there is no evidence that he was aware of this
comment while he was employed at CSU (See Gov. Code,
§ 12940, subd. (j)(1).) Consequently, Martin cannot allege
harassment based on this “machismo” comment. (See Beyda v.
City of Los Angeles (1998) 65 Cal.App.4th 511, 519, 521.)
Moreover, to the extent Martin bases a harassment claim
on the Sundial articles, neither Morgan-Durisseau nor Oh were
employed by CSU when the student newspaper published the
articles. As such, CSU is only liable if it “knows or should have
known of this [harassing] conduct and fails to take immediate
and appropriate corrective action.” (Gov. Code, § 12940,
subd. (j).) First, the articles are not harassing. As discussed
above, the article written by Oh containing a “#ComeAtMeBro”
hashtag is not actionable harassment. As to the May 2, 2018
article about Morgan-Durisseau’s lawsuit, Martin’s only claim of
harassment is that Noblitt and Chandler shielded Noblitt from
negative publicity as he was not mentioned in the article even
30
though he was named in Morgan-Durisseau’s lawsuit. But this
claim is entirely speculative as there is no evidence why Noblitt
was not mentioned in the article. Second, Martin does not allege
that Noblitt was protected because he possessed any
characteristics that Martin did not, i.e., nonmale,
nonheterosexual, nonwhite-presenting. Accordingly, the Sundial
articles cannot constitute actionable harassment.
Martin further fails to articulate how CSU’s response to the
Sundial articles was harassment based on Martin’s protected
characteristics. CSU explicitly defended Martin by stating that
the Morgan-Durisseau lawsuit had no merit and that it would
defend against the unfounded allegations. More pertinently,
Martin’s perception that the response was weak and “boilerplate”
is not evidence that CSU’s response was based on Martin’s
protected characteristics.
Martin also does not identify any evidence creating a
reasonable inference that directing Martin to refrain from
discussing the articles was harassment based on any protected
characteristic. Instead, CSU proffered evidence that this
instruction was based on its standard media policies. Further,
Martin fails to point to any other evidence that CSU’s direction
was based on any protected characteristic.
Even considering additional alleged conduct outside the
scope of the pleadings, Martin does not identify conduct
constituting harassment. As to Oh’s complaints and E&D’s
investigation of those complaints, this Division previously
explained that an employer’s “statements and personnel
decisions” concerning an employee do not create a material
factual dispute as to harassment because “[h]arassment is not
conduct of a type necessary for management of the employer’s
31
business or performance of the supervisory employee’s job.”
(Thompson, supra, 186 Cal.App.4th at p. 879 [quoting Reno v.
Baird (1998) 18 Cal.4th 640, 646].) As the entity that
investigates complaints against employees, E&D was required to
investigate any complaints against Martin as part of its normal
personnel practices. (Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55, 64–65.) Moreover, Martin fails to create a
reasonable inference that CSU used the investigations to
communicate “a hostile message” based on any protected
characteristic. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
707.) E&D was simply carrying out its function to investigate
complaints of harassment and discrimination.
We recognize the Legislature admonishes that
“[h]arassment cases are rarely appropriate for disposition on
summary judgment.” (Gov. Code, § 12923, subd. (e); see Nazir,
supra, 178 Cal.App.4th at p. 286.) But rarely is not the same as
never, particularly in situations where there is no evidence of
conduct that would constitute actionable harassment. Here, the
trial court correctly concluded this claim was subject to summary
judgment.
IV. The trial court correctly granted summary judgment
on Martin’s failure to prevent harassment and
discrimination claim
Because Martin cannot prevail on his harassment and
discrimination claims, the trial court correctly granted summary
judgment on Martin’s failure to prevent harassment and
discrimination claims. “An actionable claim under section 12940,
subdivision (k) [for failure to prevent discrimination or
harassment] is dependent on a claim of actual discrimination [or
32
harassment].” (Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1021.)
V. Martin forfeited his appeal of the trial court’s
evidentiary rulings
The trial court sustained CSU’s objections Nos. 2, 7, 10, 12,
13, 15, 17 to the Declaration of Bryan J. Lazarski. Martin argues
that we should conduct de novo review of these rulings because
the trial court did not articulate the bases for the rulings. Here,
however, the trial court sustained CSU’s objections, and CSU set
forth its bases for its objections in its filings. As such, it is not
accurate to conclude that the bases for the trial court rulings are
not discernable. Moreover, our Supreme Court has only
cautioned that when a trial court entirely fails to rule on
objections made in a summary judgment motion, the objections
are deemed overruled and they are preserved for de novo
appellate review. (See Reid, supra, 50 Cal.4th at p. 534.) That is
not what occurred here.
Like any other claim of error, Martin is required to support
evidentiary issues on appeal with argument and authority as to
why, under the proper standard of review, the court erred.
Martin must also explain how the error was prejudicial. (York v.
City of Los Angeles (2019) 33 Cal.App.5th 1178, 1190.) Martin
has failed to conduct this essential analysis and presents no
further argument on this point in his reply brief. Here, Martin
does not identify the evidence where the trial court purportedly
erred in sustaining objections, and why the bases for sustaining
CSU’s objections were erroneous. Thus, his unspecified
challenges to the trial court’s rulings on the Lazarski declaration
fail.
33
More specifically, Martin does argue that “to the extent
[the rulings] applied to emails,” they should be admitted as
records by public employees. However, Martin does not specify
which e-mails and why each ruling was error, so these arguments
fail as well.
Finally, Martin further argues that the Sundial articles
should not have been excluded because they were self-
authenticating. As CSU points out, the trial court did not
exclude the Sundial articles. In summary, Martin’s challenges to
the trial court’s evidentiary rulings fail.
DISPOSITION
The order granting CSU’s motion for summary judgment is
affirmed. The parties shall bear their own costs.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
34