Slagel v. Liberty Mutual Insurance Company CA2/1 ( 2023 )

Filed 6/13/23 Slagel v. Liberty Mutual Insurance Company CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JOY SLAGEL, B310132, B312788, B316017
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC648246)
v.
LIBERTY MUTUAL INSURANCE
COMPANY et al.,
Defendants and Respondents.
APPEALS from a judgment and orders of the Superior
Court of Los Angeles County, Jon R. Takasugi, Judge. Reversed
in part and affirmed in part.
Shegerian & Associates, Carney R. Shegerian and Anthony
Nguyen for Plaintiff and Appellant.
Jackson Lewis, Yvonne Arvanitis Fossati, Thomas G.
Mackey, Dorothy L. Black, and Dylan B. Carp for Defendants and
Respondents.
___________________________________
In this wrongful termination action, employee Joy Slagel
appeals from a judgment and post-judgment orders entered after
the trial court granted the motions by her employer, Liberty
Mutual Insurance Company (Liberty), and two supervisors, for
summary judgment. We reverse in part and affirm in part.
BACKGROUND
I. Employment
A. Liberty’s Supervisory Structure
Liberty provides insurance services, including Worker’s
Compensation insurance. From 2012, Liberty employed Ariam
Alemseghed to oversee its Glendale Claims Department as a
Regional Claims Manager. From 2013, Liberty employed Leann
Lo in its Glendale department as a Claims Manager.
In 2012, Ariam Alemseghed was promoted to Regional
Claims Manager, overseeing Liberty’s Glendale claims
department.
Alemseghed lacked the authority to terminate an employee
for misconduct, and could terminate someone for
underperformance only with internal approvals.
B. Slagel’s Duties and Complaints
Liberty employed Slagel from 1985 to June 30, 2016, most
recently as Senior Case Manager in its Glendale claims
department. For 30 years, she received consistently positive
reviews from supervisors, colleagues and clients.
From 2012 to April 24, 2015, Slagel reported directly to
Team Manager Craig Ballard.
From April 2015 until her termination, Slagel reported
directly to Team Manager Melanie Krikorian, who in turn
reported to Leann Lo, who reported to Alemseghed.
2
Liberty’s Employee Handbook and Code of Business Ethics
and Conduct, of which Slagel was aware, prohibited employees
from making untruthful statements in company communications
and provided that a violation of the policy could lead to
termination.
In February 2015, Slagel went on disability leave due to
stress and anxiety. After returning in March 2015, Alemseghed
instructed Ballard, Slagel’s immediate supervisor, to rate Slagel
as “needs improvement” on her performance assessment. When
Slagel asked Ballard why she received this rating, he told her he
had not wanted to give it but Alemseghed instructed him to do so.
When Slagel complained to Alemseghed about the rating,
Alemseghed stated that because of her “tenure,” Slagel would be
held to “higher expectations.”
On March 4, 2015, Slagel wrote to Glenn Shapiro, Liberty’s
Vice President/Chief Claim Officer, complaining that Alemseghed
mistreated her and several other long-term employees “in a
manner that lacked dignity and respect,” and she feared
retaliation because Alemseghed had a close relationship with
Virginia Bennett, Liberty’s Human Resources Generalist. Slagel
received no response.
In June 2015, Slagel told Human Resources (HR) Manager
Michael Polk that 15 people had left in the last 12 months, and
Alemseghed wanted long-term employees to leave so she could
hire recent college graduates. Nothing was done.
In November 2015, Slagel received a Customer Service
Award for her handling of claims for one of Liberty’s accounts.
Alemseghed told her, “You just got lucky, it will never happen
again.”
3
In January 2016, Lo became Slagel’s Claims Manager.
Shortly thereafter, Lo accused Slagel of speaking negatively
about Liberty, and said, “I am warning you!”
Lo and Alemseghed thereafter inundated Slagel with work
and shunned and ostracized her.
C. Disney’s Complaint Against Slagel Regarding a
Social Media Report
In 2014, Slagel was assigned Liberty’s Disney account.
Part of her duties included attending litigation review
meetings (sometimes called “claims review” meetings) between
Disney, Disney’s legal counsel, and Liberty claims managers to
discuss workers’ compensation claims pending against Disney.
If requested to do so, Slagel was required to conduct a
social media “check” on a workers’ compensation claimant. A
social media check consists of searching for whether the claimant
has a social media presence and whether there are any red flags,
i.e., bases for an articulable suspicion that the claimant was
defrauding his or her employer. The check was typically
performed by searching multiple social media outlets to see
whether the claimant was engaging in activities outside his or
her medical restrictions.
A social media check would typically be done either by the
claims manager or handling adjustor, but if further investigation
was required it would be assigned to a field investigator. If the
investigators were too busy, Liberty would retain an outside
vendor to pursue further investigation. Once a check has been
performed, the investigator would place a note in the claimant’s
file reporting the findings.
In April 2015, at a claims review meeting that included
Slagel, Ballard and Stephanie Conner, who works for Disney
4
(apparently in its risk management department), Conner
requested that Ballard perform a social media check on a
workers’ compensation claimant. Ballard got on his laptop “on
the spot” and used his personal subscriptions to Intelius, a public
records search service, and Spokeo, a people search Web site, to
determine that nothing indicated the claimant was “doing
anything outside of her [medical] restrictions.” Ballard also
looked up the claimant on Facebook and found no “ ‘articulable
suspicion’ of possible fraud” such as would justify more
formalized surveillance. He verbally reported, “Nothing of
interest here,” and, “Doesn’t look like the person is active,” but
failed to make a note of his findings in the claimant’s file.
Slagel did not know that Ballard failed to note his findings
in the claimant’s file.
In August 2015, Conner requested a social media check for
the same claimant as had been the subject of Ballard’s April 2015
search. Slagel reminded Conner that Ballard had performed the
social media search in April 2015, and it was negative.
On March 24, 2016, Slagel attended a litigation review
meeting at which Conner was present. Conner again requested a
social media check on the same claimant, and Slagel again
informed her that it had already been conducted by Ballard in
April 2015. Slagel told Conner she would get a copy of the report
and send it to her.
Thirty minutes after the meeting, Slagel for the first time
formally requested a social media report on that claimant, doing
so under a Liberty system category called “Medical,” which a
client such as Disney could not access through Risktrac, Liberty’s
claims tracking program on its Web site, instead of a category
called “Investigation,” which the client could access.
5
The next day, March 25, 2016, Conner emailed Slagel,
“Please send me a copy of the social media background check that
we discussed at the review yesterday.” Slagel replied, “I do
remember the Social Media Search previously came back
negative but I could not locate the report. I have requested a
copy of the report. I will forward you a copy once received.”
The second social media check was performed on the
claimant and came up negative. On April 8, 2016, Slagel
forwarded the report to Conner.
That same day, April 8, 2016, Conner emailed Krikorian,
stating, “This is the case we discussed shortly after the lit review.
I saw your [note] stating that the social media check had not been
completed. I asked [Slagel] during the review and she stated it
was completed, but there were no findings. I asked for a copy of
the report . . . and received the attached . . . report dated 4/8/16.
There are obviously findings on this report. I checked Risktrac
and see that the referral was made 3/24/16 (the day of the
litigation review). I understand that to do items or activities slip
through the cracks, but my concern is that [Slagel] was trying to
hide the fact that it was not completed. She continued to tell me
that the second copy was requested (we just spoke yesterday),
when in fact this was an initial referral with a report completed
today. . . . This is concerning because this appears to be an
obvious attempt for her to hide information from Risk Mgmt and
I hope there aren’t other claims with this type of action. This was
not a major point or factor in this case, and she could have easily
said she forgot and would complete ASAP.”
Krikorian forwarded Conner’s concerns to Lo, who
forwarded them to Virginia Bennett (Liberty’s Principal HR
Generalist).
6
Bennett interviewed Slagel by telephone. Slagel told
Bennett that Ballard had already conducted Disney’s requested
social media search during a prior claims review meeting in April
2015 and had advised Conner of the negative results. Slagel
suggested that Ballard be contacted to confirm that the April
2015 social media search had been completed, but Bennett
refused to contact Ballard and forbade Slagel from doing so.
When asked why she had posted her request for a social
media report under the “medical” topic rather than
“investigation,” Slagel replied, “Because the customer can’t see it.
I just assumed I should post it under medical because they can’t
see it. Medical information they cannot see.” When asked
whether she felt this was medical information, Slagel replied,
“Not sure, maybe I should post it under investigation?”
On April 15, 2016, Conner called Krikorian, who
memorialized the conversation as follows:
“[Conner] gave Joy several opportunities to come clean
about what happened and Joy continued to deceive her on that
particular file. She followed up on 3/25 after the lit review asking
for the report and Joy continued to say she would get a copy. She
called her on 4/7 and verbally asked her and Joy again said she
would get the copy. Not once did Joy tell Stephanie that there
was no prior [social media] check and that this was the first
request.
“[Conner] specifically told me that she informed [a Disney
employee] and [she] was pretty upset after hearing that [Slagel]
lied about this social media check. Disney wants to set aside 30
minutes after the claims review on 4/19 to discuss these issues
and discuss Joy. They want us to disclose some information to
them to assist them in making a decision about Joy on the
7
account. [Conner] said they would have to evaluate this
internally as well. When I asked [her] if there were other issues
she went on to say that Joy is not proactive, that [Conner] has to
follow up with her on several claims, that [another Liberty
employee] calls [Conner] everyday to discuss claims and their
progress but [Slagel] doesn’t. The level of customer service
provided is not adequate and they feel that [Slagel] is ‘skating’ by
and only doing minimal work on their account.
“[Conner] also said that if [the other Liberty employee]
made this same mistake it would be out of character for [her] but
knowing that [Slagel] did it, it doesn’t surprise them because they
already question her integrity.
“At the end of the day, [Conner] questions [Slagel’s]
integrity on the claims handling and wants to know if she is also
covering up on other claims or not being truthful about actions
taken or not taken on their files.”
On April 15 and 18, 2016, Slagel complained to Bennett
and Lo that she was being targeted because she was a 30-year
employee whom Alemseghed wanted to replace.
On April 19, 2016, Slagel sought medical care for
hypertension, coronary artery disease, hyperlipidemia, and panic
attacks related to work-related stress and depression, and
subsequently applied for short-term disability leave.
While Slagel was on leave, Bennett analyzed her failure to
obtain a social media report for Disney and noted that Slagel
thought she was being set up because she was a 30-year
employee. Bennett resolved Slagel’s complaint with no
investigation because he believed she was a “negative influence
in the Glendale office.”
8
On June 10, 2016, Bennett emailed a report of her
examination, titled “Situation Analysis,” to Gabriel Williams,
Liberty’s Employee Relations Consultant, who could authorize
terminating an employee. Bennett recommended that Slagel be
terminated.
Williams, who was also an attorney, approved Slagel’s
termination for cause because she had falsified company records,
as she admitted during her telephone interview with Bennett
that she placed the Disney request for a social media report
under the “medical” category because Disney would be unable to
see it.
Lo terminated Slagel on June 30, 2016, the day she
returned from leave.
II. Lawsuit
A. Complaint
Slagel filed a complaint against Liberty, Alemseghed, and
Lo, alleging causes of action for:
(1) age-based discrimination;
(2) age-based harassment;
(3) retaliation in violation of the California Fair
Employment and Housing Act (Gov. Code, § 12900, et seq.;
FEHA)1;
(4) discrimination on the basis of taking disability leave;
(5) retaliation for taking disability leave;
(6) failure to provide reasonable accommodation;
(7) failure to engage in the interactive process in violation
of FEHA;
1
Undesignated statutory references will be to the
Government Code.
9
(8) breach of express oral contract not to terminate
employment without good cause;
(9) breach of implied-in-fact contract not to terminate
employment without good cause;
(10) wrongful termination in violation of public policy;
(11) violation of Labor Code section 1102.5; and
2
(12) intentional infliction of emotional distress (IIED)).
Slagel basically alleged that Alemseghed and Lo, with the
assistance of Conner, their protégé, conspired to terminate Slagel
due to her age. They did so by inducing Conner to feign confusion
over a Disney social media report, then leverage Conner’s false
complaint to Liberty about Slagel into a violation of company
policy.
B. Discovery
1. Williams Deposition
During discovery, Slagel attempted to depose Williams
concerning his decision to approve Slagel’s termination. During
the deposition Williams, an attorney, was unable to understand
several basic questions. As a sampling:
“Q: Is there any company policy against using personal
e-mail for Liberty Mutual business?
2
Slagel makes no attempt on appeal to support her 6th,
7th, 8th, 9th, or 11th causes of action, respectively failure to
provide reasonable accommodation or to engage in the interactive
process in violation of FEHA, breach of express or implied
contract, and violation of Labor Code section 1102.5. We will
therefore affirm as to them. (Telish v. State Personnel Board
(2015) 234 Cal.App.4th 1479, 1487, fn. 4.)
10
“A: Can you be more specific? I don’t understand the
question. . . . I don’t think your question is specific enough for me
to answer. . . . I can’t answer—I just can’t answer that
question. I just don’t understand it well enough to answer.”
“Q: Do you happen to recall the type of cases that you were
deposed for?
“A: I’m not sure what you mean by ‘type of case . . . .’ ”
“Q: Do you happen to recall the nature of that cause of
action?
“A: I’m not sure what you mean by ‘nature . . . .’ ”
“Q: Outside of your conversations with counsel, did you
speak with anybody about this deposition?
“A: What do you mean by ‘speak’ with someone? I’m
thinking it has multiple definitions.”
“Q: Did you have to undergo any training for the position?
“A: What do you mean by ‘have to?’ ”
“Q: Do you recall whether you used material to conduct
that training?
“A: What do you mean by material?”
“Q: Did you conduct that training from memory?
“A: Entirely? . . . Did I conduct any part from memory. I
remember my name, so I mentioned my name. . . .”
Williams claimed attorney client privilege regarding any
conversation he had with Bennett, stating that if any such
conversation occurred, it “involve[d] counsel.” He testified he did
not recall “much, if anything” about Bennett’s situation analysis,
upon which he depended to approve Slagel’s termination, because
he had not “reviewed it in a long time.”
Williams avoided the entire line of questioning pertaining
to Slagel’s termination:
11
“Q: In your department, what role does your department
play in the hiring and firing of employees?
“[Counsel]: Lacks foundation, assumes facts not in
evidence, vague and ambiguous both as to time and overbroad as
to scope.
“A: You’re talking about the current department I’m in?
“Q: Correct.
“[Counsel]: Not reasonably calculated to lead to the
discovery of admissible evidence.
“A: I actually don’t know the title of the direct department
I am in.
“Q: When you say the department that you’re currently in,
were you in this same department at the time that Ms. Slagel
was terminated?
“A: I don’t know the official title of the department I’m
directly in. So because of that I can’t answer that question.
“Q: Does your department have any role in the hiring of
employees?
“[Counsel]: Vague and ambiguous, lacks foundation with
regards to the department.
“A: I would need to know what department I’m in to
answer that question. What was the question?”
“Q: In the event that you felt that termination was not
appropriate, what would then be the result?
“[Counsel]: Objection, incomplete hypothetical, lacks
foundation, assumes facts not in evidence, calls for speculation,
vague and ambiguous and unintelligible.
“A: If I thought that termination was not appropriate, of
what, when, who, where?
12
“Q: If you felt that Ms. Slagel’s termination was not
appropriate at the time that it was escalated to you, what then
would have occurred?
“[Counsel]: Objection, calls for speculation. Incomplete
hypothetical, lacks foundation, assumes facts not in evidence,
calls for speculation. I would need to know more about that
hypothetical before I could answer your question.
“Q: Just to note, you’re unable to answer this question
right now, is that correct?
“A: Based upon how you asked it, that is correct.”
On January 9, 2019, Slagel moved to compel further
responses from Williams, arguing he avoided entire lines of
questioning through “patently evasive nonsense.” The court
denied the motion, finding that “Defendant’s counsel asserted
proper objections and . . . the deponent gave substantive
answers.” The court stated, “[t]he fact that deponent asked for
clarification and Plaintiff’s counsel was forced to repeat questions
is not harassing and to be expected with a telephonic, out-of-state
deposition.”
2. Polk Deposition
On March 4, 2020, Slagel deposed Liberty’s HR Manager,
Michael Polk. Polk testified that he interviewed employees,
including Alemseghed, following Slagel’s discrimination
complaint to Shapiro, and took notes of these interviews.
However, he was instructed not to answer questions regarding
anyone interviewed other than Slagel, and the deposition was
suspended because neither his notes nor information related to
his interviews were produced.
On May 1, 2020, the trial court granted Slagel’s ex parte
application to compel Polk’s further deposition, but defendants
13
withheld, based on privilege, an email from Polk to Bennett
regarding Polk’s interviews and failed to produce Polk’s complete
interview notes. During the subsequent deposition, Polk could
not explain why his notes were not produced.
III. Summary Judgment
A. Arguments and Evidence
Defendants filed motions for summary judgment, arguing
no triable existed as to whether they harbored a discriminatory
motive for Slagel’s discharge.
1. Request for a Continuance
Slagel sought to continue the summary judgment hearing
to complete discovery regarding Polk’s interviews, including the
notes and an interview chart (exhibit 17) he had not produced.
The court denied Slagel’s request, stating Polk’s notes “no longer
exist and thus cannot support Plaintiff’s opposition to the Motion
for Summary Judgment.”
Slagel also requested time to depose Latecia Flemming,
explaining Flemming would testify about her discussions with
Polk in response to an anonymous complaint Slagel had made
and a subsequent investigation into the work environment in
Liberty’s Glendale claims department. Slagel further requested
time to depose Dan Karnovsky, who controlled the investigatory
reports and notes generated during the investigation into Slagel’s
anonymous complaint of discrimination and harassment
committed by Alemseghed. The court denied these requests.
2. Defendants’ Evidence
Defendants argued that Slagel was terminated for
misconduct, including falsifying records. It argued that on March
24, 2016, Slagel (1) falsely told Conner at Disney that the social
media report Conner requested in August 2015 had been
14
completed by Ballard in April 2015, and (2) made a false entry
into Risktrac about her April 2016 request for a social media
investigation, attempting to hide from Disney the fact that this
was the first time an investigation was requested.
In support of the motions, Bennett testified that she
recommended to Williams that Slagel be terminated, but the
decision to terminate was Williams.
Williams declared that he approved Slagel’s termination
because of her “admission during her interview [with Bennett]
that she placed the request for a Social Media Report under the
‘Medical’ category because the client would be unable to see the
Request.”
Alemseghed and Lo declared they had no authority to
terminate an employee for misconduct.
3. Slagel’s Evidence
In opposition to the motions, Slagel denied trying to deceive
Disney, argued the social media check issue was “trivial,” and
argued that Liberty violated its own policies in terminating her.
In support of the opposition, Slagel declared that Ballard
could have cleared up the misunderstanding with Disney, but
Bennett refused to contact him.
Ballard declared that Alemseghed became supervisor in
2013, after which many long-term employees, including himself,
either resigned or were terminated, including Tony Beliso, a 30-
plus-year employee who was in his 50s or 60s, Beronica Herrera,
a 15-year employee in her 40s, Helen Adoian, a 15-plus-year
employee in her 40s, and adjusters Ana Lopez, Kimberly Gruner,
Kathy Garcia, Karine Srapyan, and Regina Ghaussi. Ballard
declared Alemseghed made his “work environment very difficult
and unbearable.”
15
Ballard declared that around 2013 to 2014, Disney asked
that Slagel be dedicated exclusively to Disney accounts.
Ballard declared that during the April 2015 claims review
meeting, Conner asked whether a “social media check” had been
done on one of Disney’s workers’ compensation claimants. A
social media check consisted of searching for whether a claimant
had a social media presence and whether there were any red
flags, or, articulable suspicions, that the claimant was defrauding
the workers’ compensation system. For example, he could
perform a search by looking across multiple social media outlets
to see whether there was anything showing the claimant was
physically active, working, or engaging in activities outside of his
or her medical restrictions. He would place a note in the
claimant’s file based on his findings. Ballard declared there were
different ways to perform a social media check, but typically they
were done either internally by the handling adjustor, or if the
check called for further investigation an internal field
investigator would be assigned. If Liberty’s internal
investigators were overwhelmed, Liberty would then look to
outside vendors to pursue further investigation.
In response to Conner’s query, Ballard “performed a social
media check through [his] laptop on the spot, by searching
through [his] regular system, Intelius, and Spokeo,” applications
he used as part of his outside employment. He found nothing
leading him to believe the claimant was doing anything outside of
her workers’ compensation restrictions. Ballard also looked up
the claimant on Facebook to see if there was any articulable
suspicion of possible fraud that would justify “formalized
surveillance,” but found nothing. Ballard said aloud during the
meeting, in Slagel’s and Conner’s presence, “something to the
16
effect of, ‘Nothing of interest here’ and ‘Doesn’t look like the
person is active.’ ” Ballard did not recall whether he placed a
note to that effect in the claimant’s file.
Slagel declared that on April 18, 2016, Lo advised her she
would be excluded from a two-day claims review with Disney, and
that “Jumana, a less senior employee who notably was in her 30s
at the time,” would take her place. Slagel declared she
“complained to Lo that this is age discrimination, and Liberty
Mutual is attempting to use this to get rid of [her, and] . . .
Liberty Mutual has been getting rid of people [her] age.
However, this complaint was disregarded.”
Christina Restrepo, a former Liberty employee, declared
that Liberty had a culture of “terminating older employees, or in
the alternative, unjustifiably increas[ing] their workload,
claim[ing] that other employees complained about them, issu[ing]
them baseless warnings in an effort to create a paper trail, and
subsequently terminat[ing] them.” Liberty would replace older
employees with younger, underqualified ones, and demote older
employees while promoting younger, underqualified ones.
Slagel presented Williams’s deposition testimony, in which
he stated he communicated only with Bennett concerning Slagel.
He did not recall the content of any discussion with Bennett but
testified that in approving Slagel’s termination he relied on the
situation analysis Bennett authored.
Slagel presented evidence concerning her age and
disability, qualifications for the job, the demographics in Liberty’s
Glendale office, and the timing of her complaints and adverse
employment actions. She received “glowing” reviews during her
30-year employment; Alemseghed subjected employees over 40 to
unreasonable workloads and looked for mistakes to justify
17
terminating employees over 40; Alemseghed scolded Slagel in
2013 for performing too well on the Disney account, exclaiming,
“You set the bar too high, and now we have to jump through
hoops because of you!”; Slagel complained to Liberty that
Alemseghed continued to treat her and several other long-term
employees in a manner that lacked dignity and respect”; Slagel
reported to Liberty that Alemseghed “rarely gives older
employees ‘kudos,’ while often giving them to younger
employees,” and gives “swift and severe reprimands to older
employees”; Lo falsely accused Slagel of speaking negatively
about Liberty; and Slagel complained to Bennett that she felt Lo
and Alemseghed were overreacting to the Social Media Report
because “she is a 30-year employee,” and Slagel believed she was
being “set up.”
Slagel also presented the situation analysis that Bennett
sent to Williams. Bennett emailed the situation analysis to
Williams at 5:19 p.m. on June 10, 2016. The situation analysis
noted Slagel’s age, the fact that she was “currently on leave of
absence,” and the fact that Slagel “believes the company is
setting her up because she is a 30-year employee.” Bennett
stated in the email, “we do not plan to implement the termination
until the employee return[s] to work,” and asked Williams to
“[p]lease advise if you have any questions or need any additional
information.” Nowhere in the email or analysis did Bennett
expressly request permission to terminate Slagel. Williams
replied to Bennett half an hour later, at 5:51 p.m., “Termination
for cause approved.”
Slagel argued that Bennett and Williams were not the sole
decisionmakers in the decision to terminate her employment
because Bennett relied on her discussions with Lo and
18
Alemseghed when reporting to Williams, and Williams relied
exclusively on Bennett’s situation analysis. Slagel argued that
Alemseghed and Lo’s animus thus contaminated Williams’s
decision to terminate her.
4. Ruling and Judgment
The trial court found that Slagel submitted evidence of a
discriminatory motive on the part of Alemseghed, but no triable
issue existed as to whether Liberty’s reason for terminating
Slagel was pretextual because the evidence showed that she
failed to order a requested social media report, told Disney that it
had been ordered when it had not, and attempted to conceal her
error by filing a newly ordered report under a “Medical” rather
than “Investigation” category.
“More importantly,” the court found, Slagel “simply has not
submitted evidence to show how Alemseghed’s age bias caused
her termination when Alemseghed was not responsible for her
termination, and when the proffered reason for Plaintiff’s
termination, i.e., the social media report incident, actually did
occur.”
The court thus found it to be undisputed that Bennett and
Williams, as opposed to Alemseghed, were responsible for Slagel’s
termination, and found it “crucial” that Slagel submitted no
evidence to suggest Bennett or Williams possessed a
discriminatory motive. The court found that Slagel’s claim that
Bennett participated in Alemseghed’s and Lo’s “plan to rid
themselves of [her was] entirely unsupported speculation,”
insufficient to raise a triable issue.
The court acknowledged Slagel’s argument that the Disney
report incident was “trivial,” but reasoned that Liberty’s burden
19
was not to show that its decision to terminate Slagel was wise,
only that it was nondiscriminatory.
Accordingly, the court granted summary judgment in
defendants’ favor and entered judgment. It awarded Liberty and
Alemseghed jointly $26,917.61 in costs as prevailing parties,
allocated to Slagel’s non-FEHA claims.
IV. Lo’s Sanctions Motion
On June 12, 2020, Lo sought sanctions pursuant to Code of
Civil Procedure section 128.7 against Slagel and her counsel on
the ground that Slagel’s allegations against Lo lacked factual
support. The court found that the only conduct alleged against
Lo constituted either personnel management actions or conduct
that cannot reasonably be said to show harassment. The court
reasoned that Slagel’s allegations that Lo’s conduct was
motivated by Slagel’s age were unsupported by any evidence, and
Slagel attributed to Lo wrongdoing that was allegedly committed
by Alemseghed.
The court awarded Lo $70,058.15 in attorney’s fees and
$15,418.96 in costs.
DISCUSSION
Slagel contends the court erred in denying her motion to
compel the further deposition of Williams, in denying her motion
for a continuance, in finding no triable issue as to whether
Liberty’s justification for terminating her was pretextual, and in
finding her allegations against Lo were in bad faith.
I. Summary Judgment
In Slagel’s surviving causes of action—for age-based
discrimination and harassment, discrimination and harassment
on the basis of disability, wrongful termination, and IIED—she
alleges she was terminated due to her age, disability, and
20
complaints about age-based discrimination. Liberty does not
dispute Slagel’s membership in protected categories, nor that she
made complaints about age-based discrimination and was
thereafter terminated. The trial court granted summary
judgment on the sole ground that no triable issue exists as to
whether Liberty’s justification for terminating Slagel was
pretextual.
Slagel contends this was error. We agree.
A. General Legal Principles Regarding
Discrimination Claims and Summary Judgment
Both federal and state law prohibit employers from
discriminating against employees on the basis of age or disability.
(§§ 12940, subd. (a) & 12941; 42 U.S.C. § 2000e et seq.; 29 U.S.C.
§ 621 et seq.) “Because of the similarity between state and
federal employment discrimination laws, California courts look to
pertinent federal precedent when applying our own statutes.”
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
An employee alleging age or disability discrimination or
retaliation must be over 40 years old and/or suffer from a
disability, and must “ultimately prove that [an] adverse
employment action taken was based on his or her age” or
disability and/or her complaints about her treatment. (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1002
(Hersant); accord, Guz, supra, 24 Cal.4th at pp. 354-355.) “Since
direct evidence of such motivation is seldom available, the courts
use a system of shifting burdens as an aid to the presentation
and resolution of age discrimination cases.” (Hersant, at p. 1002.)
Specifically, “California has adopted the three-stage . . . [¶] . . .
McDonnell Douglas [Corp. v. Green (1973) 411 U.S. 792] test,”
which “reflects the principle that direct evidence of intentional
21
discrimination is rare, and that such claims must usually be
proved circumstantially. . . . [B]y 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, at p. 354.)
At trial, this burden-shifting system requires the employee
first establish a prima facie case of age or disability
discrimination or retaliation. If the employee does so, the
employer is required to offer a legitimate non-discriminatory or
non-retaliatory reason for the adverse employment action. “If it
does not, then the employee prevails. [Citations.] [¶] Given the
varying nature of the problem, it is impossible to make an exact,
all-inclusive statement of the elements of a prima facie age
discrimination case applicable in all situations. [Citations.] The
general requirement is that the employee offer circumstantial
evidence such that a reasonable inference of age discrimination
arises. The requirement is not an onerous one. [Citation.]
[¶] . . . [¶] When the employee has made this showing, the
burden shifts to the employer to go forward with evidence that
the adverse action was based on considerations other than age
discrimination. When the employer offers evidence justifying the
adverse action on a basis other than age, the burden shifts back
to the employee to meet his ultimate obligation of proving that
the reason for the adverse action was age discrimination. This
ultimate issue is decided on all the evidence.” (Hersant, supra, 57
Cal.App.4th at pp. 1002-1003.)
“The McDonnell Douglas framework is modified in the
summary judgment context.” (Serri v. Santa Clara University
(2014) 226 Cal.App.4th 830, 861.) On a summary judgment
motion “[i]n an employment discrimination case, . . . [t]he
22
‘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.’ ” (Zamora v. Security Industry Specialists, Inc. (2021) 71
Cal.App.5th 1, 32; see Code Civ. Proc., § 437c, subds. (c) & (p)(2).)
If the defendant meets its burden, the burden then shifts to
the plaintiff to produce substantial evidence that the employer’s
showing was untrue or pretextual by raising at least an inference
of discrimination or retaliation. (Hersant, supra, 57 Cal.App.4th
at pp. 1004-1005.)
“Pretext may . . . be inferred from the timing of the
company’s termination decision, by the identity of the person
making the decision, and by the terminated employee’s job
performance before termination.” (Sada v. Robert F. Kennedy
Med. Center (1997) 56 Cal.App.4th 138, 156.) “[E]vidence that
the employer’s claimed reason 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.)
To show pretext, the employee may not “simply deny the
credibility of the employer’s witnesses or . . . speculate as to [its]
motive.” (Serri v. Santa Clara University, supra, 226 Cal.App.4th
at p. 862.) Nor is it enough to show that the employer’s reasons
were unsound, wrong, or mistaken. (Hersant, supra, 57
Cal.App.4th at p. 1005.) Rather, the employee “ ‘must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
23
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 asserted
reasons. (Ibid.) 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 violated public
policy, the employer is entitled to summary judgment. (See Guz,
supra, 24 Cal.4th at p. 361.)
“In short, by applying McDonnell Douglas’s shifting
burdens of production in the context of a motion for summary
judgment, ‘the judge [will] determine whether the litigants have
created an issue of fact to be decided by the jury.’ ” (Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203
(Caldwell).)
Whether such an issue exists presents a question of law for
the court, which we review de novo. (Caldwell, supra, 41
Cal.App.4th at p. 201.) In so doing, we view the evidence in the
light most favorable to the employee as the party opposing the
motion. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201,
206.)
Claims, theories, subjective conjecture, and speculation are
insufficient to avoid summary judgment. (Wiz Technology, Inc. v.
Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11 [an opposition to
summary judgment is insufficient when it is essentially
conclusionary, argumentative or based on conjecture and
speculation].)
An analogous procedure applies to a claim for wrongful
discharge. (See Swanson v. Morongo Unified School Dist. (2014)
232 Cal.App.4th 954, 966.)
24
B. Application
Here, Liberty offered evidence of a legitimate, non-
retaliatory reason for discharging Slagel: She violated company
policy by lying to Disney and by falsifying company records by
filing a social media request under “medical” rather than
“investigation” in order to conceal her misrepresentation. Liberty
supported its showing with records of communications from
Conner, Disney’s representative, in which she complained about
Slagel’s failure to produce a social media report on a workers’
compensation claimant.
1. Triable Issues Exist as to Pretext
This evidence shifted the burden to Slagel to establish a
triable issue of material fact as to whether Liberty’s proffered
rationale for terminating her was pretextual.
She did so. Slagel and Ballard testified and declared that
the issue with Disney concerning its request for a social media
investigation was a misunderstanding. Ballard conducted a
social media check on Disney’s workers’ compensation claimant
in April 2015, in Conner’s presence. When Conner asked for a
report of the investigation in August 2015 and April 2016, Slagel
did not know that Ballard had failed to make a report of his April
2015 social media check. She said she would obtain “the report,”
but instead of doing so commissioned another investigation,
logging this new request under the topic “medical” in Liberty’s
records rather than “investigation” for the admitted purpose of
preventing Disney from learning about it. Slagel stated in her
interview with Bennett that she did not know whether logging
the request under “medical” was improper.
This evidence supported two conflicting inferences about
two different issues.
25
First, it supported Liberty’s inference that Slagel lied to
Disney and tried to conceal the lie by falsifying Liberty records.
However, the evidence also supported Slagel’s inference
that this was a misunderstanding based on Slagel’s thinking that
Conner simply forgot about Ballard’s investigation.
Although Liberty argues at length about the difference
between a social media “check” and a social media “report,”
reasoning that Slagel could not mistake Conner’s request for the
latter as having been satisfied by Ballard’s performance of the
former, in truth the parties throughout this case have used both
terms interchangeably. For example, although Ballard declared
he conducted a social media “check,” he also admits he cannot
remember whether he turned that check into a “report” by
making a note of it in the claimant’s file.
Liberty argues that a “report” is a “concrete piece of paper”
as opposed to an informal “check,” but that characterization
appears nowhere except Slagel’s own deposition testimony, who
did not think the difference was important, and was contradicted
by Ballard’s declaration that a “report” consisted of an online
annotation in a client’s file. Liberty argues that a social media
“report” is the result of an investigation conducted by a third
party, but Ballard declared that social media investigations were
conducted by third parties only when informal checks raised “red
flags,” and even then only when internal investigators were too
busy to conduct the investigation.
In sum, a trier of fact could reasonably conclude that Slagel
believed that Disney’s August 2015 and April 2016 requests for a
social media investigation had already been fulfilled, and ordered
a second investigation only out of an abundance of caution to
keep the client happy. The trier of fact could also reasonably
26
conclude that Slagel did not know it would be improper to conceal
the second request from Disney until such time as it was
reported, which it inevitably would be.
The evidence supported two conflicting inferences about a
second issue as well: How important was this dispute to Liberty?
On the one hand, a trier of fact could reasonably conclude
Liberty felt this was important enough to fire Slagel because
Conner complained about Slagel’s honesty.
On the other hand, Slagel had been an exemplary employee
for several decades. “Pretext may . . . be inferred . . . [from] the
terminated employee’s job performance before termination.”
(Flait v. North American Watch Corporation (1992) 3 Cal.App.4th
467, 479; Colarossi v. Coty US Inc., (2002) 97 Cal.App.4th 1142,
1153.) Firing a highly rated employee for a minor offense is
evidence of pretext. (Flait, at p. 479; Shager v. Upjohn Co. (7th
Cir. 1990) 913 F.2d 398, 401.)
And the Disney incident involved only one client’s request
for only one social media investigation, which was performed
twice, with negative results both times. Pretext may be shown
where the severity of an employer’s punishment does not fit the
putative issue. (Stalter v. Wal-Mart Stores, Inc. (7th Cir. 1999)
195 F.3d 285, 290 [“More compelling is the severity of the
punishment in relation to the alleged offense. . . . This strikes us
as swatting a fly with a sledge hammer. That Wal-Mart felt
compelled to terminate Stalter for this offense does not pass the
straight-face test”].)
In addition, Slagel told Bennett that the social media
check/report misunderstanding could be cleared up if only
Bennett would call Ballard. Ballard supported this
representation in his declaration, in which he stated he
27
conducted a social media check on Disney’s claimant but failed to
make a report of it. An employer’s failure to adequately
investigate matters relating to its employee is evidence of
pretext. (Mendoza v. West. Med. Cent. Santa Ana (2014) 222
Cal.App.4th 1334, 1344 [lack of a rigorous investigation is
evidence suggesting that defendants did not value discovery of
the truth so much as a way to clean up an uncovered mess]; Silva
v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 262-263 [“ ‘the
question critical to defendants’ liability is . . . whether at the time
the decision to terminate his employment . . . defendants, acting
in good faith and following an investigation that was appropriate
under the circumstances, had reasonable grounds for believing
plaintiff had done so’ ”]; Reeves v. Safeway Stores, Inc. (2004) 121
Cal.App.4th 95, 121.) “[F]ailure to interview witnesses for
potentially exculpatory information evidences pretext.” (Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280.)
2. Triable Issues Exist as to Liberty’s
Discriminatory Motive
The trial court found that Slagel “submitted evidence to
suggest a discriminatory motive by Alemseghed.”
However, the court found no triable issue as to whether
Alemseghed’s age bias caused Slagel’s termination because
“Alemseghed was not responsible for her termination.” On the
contrary, the court found, Bennett and Williams were responsible
for Slagel’s termination, and no evidence suggested they
possessed a discriminatory motive.
We reject this conclusion for three reasons.
First, as discussed above, substantial evidence suggested
that Bennett directly participated in Alemseghed’s plan to rid
Liberty of Slagel on the basis of her age: Slagel was an
28
exemplary employee; her offense against Disney was arguably
minor and immaterial; the offense was a misunderstanding that
Bennett could have cleared up with a reasonable and appropriate
investigation, including an interview of Ballard, but failed to do
so; and the punishment Bennett recommended was overly severe
in relation to the offense.
Second, although the court found that Williams was
responsible for Slagel’s termination, its earlier discovery ruling
prevented Slagel from fully investigating whether this was true.
Williams, an attorney, testified he did not recall “much, if
anything” about Bennett’s situation analysis, upon which he
purportedly depended to approve Slagel’s termination, because he
had not “reviewed it in a long time.” Assisted by harassing
objections from Liberty’s counsel, Williams professed not to know
what department he was in, whether it was the same department
he was in when Slagel was terminated, or what would have
happened had he failed to approve the termination. (The
deposition transcript is, frankly, painful to read.)
Slagel moved to compel further responses, arguing
Williams had avoided entire lines of questioning through
“patently evasive nonsense,” but the court found that Liberty’s
“counsel asserted proper objections” and “Williams gave
substantive answers” in a manner “to be expected with a
telephonic, out-of-state deposition.”
We disagree. Liberty’s objections were obstructionist,
Williams’s answers obfuscatory, and the conduct of the deposition
far below the standard to be expected, telephonic or not.
More importantly for our purposes, Liberty’s discovery
abuse prevented Slagel from potentially obtaining the very
evidence upon which it now relies. The court found that no
29
triable issue existed as to Liberty’s discriminatory motive
because no evidence suggested anyone but Williams, who did not
know Slagel, made the ultimate decision to fire her. But even
Williams himself purported not to know his role in the
termination. Liberty cannot hide Williams’s role during
discovery then rely on it on summary judgment.
Finally, even if neither Bennett nor Williams harbored
discriminatory animus toward Slagel, a triable issue exists as to
whether Alemseghed’s animus may be attributed to them.
“ ‘ “[A]n individual employment decision should not be
treated as a . . . [‘]watertight compartment, with discriminatory
statements in the course of one decision somehow sealed off from
. . . every other decision. . . .[’] ” ’ ” (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 74.) “Thus,
showing that a significant participant in an employment decision
exhibited discriminatory animus is enough to raise an inference
that the employment decision itself was discriminatory, even
absent evidence that others in the process harbored such animus.
(DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551.)
An employer is “responsible where discriminatory or
retaliatory actions by supervisory personnel bring about adverse
employment actions through the instrumentality or conduit of
other corporate actors who may be entirely innocent of
discriminatory or retaliatory animus.” (Reeves v. Safeway Stores,
supra, 121 Cal.App.4th at p. 116.) “To establish an entitlement
to judgment as a matter of law, it is not enough to show that one
actor acted for lawful reasons when that actor may be found to
have operated as a mere instrumentality or conduit for others
who acted out of discriminatory or retaliatory animus, and whose
actions were a but-for cause of the challenged employment action.
30
If a supervisor makes another his tool for carrying out a
discriminatory action, the original actor’s purpose will be
imputed to the tool, or through the tool to their common
employer.” (Id. at p. 113.)
Judge Posner explained this concept in Shager v. Upjohn
Co., supra, 913 F.2d 398. There, the district court granted the
employer’s motion for summary judgment, in part because the
plaintiff had been discharged by decision of a “Career Path
Committee,” whose members did not appear to have acted with
discriminatory animus. In reversing, Judge Posner wrote that
the committee’s decision to fire the plaintiff did not necessarily
insulate the employer from the age-related animus exhibited by
the plaintiff’s supervisor Lehnst; rather the decision “was tainted
by Lehnst’s prejudice” because he “not only set up Shager to fail
by assigning him an unpromising territory but influenced the
committee’s deliberations by portraying Shager’s performance to
the committee in the worst possible light.” (Id. at p. 405.)
In language with distinct parallels to the facts a jury might
find here, Judge Posner explained further: “Lehnst’s influence
may well have been decisive. The committee’s deliberations . . .
were brief, perhaps perfunctory; no member who was deposed
could remember having considered the issue. A committee of this
sort, even if it is not just a liability shield invented by lawyers, is
apt to defer to the judgment of the man on the spot. Lehnst was
the district manager; he presented plausible evidence that one of
his sales representatives should be discharged; the committee
was not conversant with the possible age animus that may have
motivated Lehnst’s recommendation. If it acted as the conduit of
Lehnst’s prejudice—his cat’s-paw—the innocence of its members
would not spare the company from liability. For it would then be
31
a case where Lehnst, acting within (even if at the same time
abusing) his authority as district manager to evaluate and make
recommendations concerning his subordinates, had procured
Shager’s discharge because of his age. Lehnst would have
violated the statute, and his violation would be imputed to [the
employer]. The committee would be out of the picture.” (Shager
v. Upjohn Co., supra, 913 F.2d at p. 405; see id. at p. 406 [triable
issue existed as to whether the committee was a “mere rubber
stamp,” or “made an independent decision”].)
Here, triable issues exist as to whether Williams’s decision
to approve Slagel’s termination was tainted by Alemseghed’s
bias. Alemseghed influenced Bennett’s and Williams’s
deliberations by portraying Slagel’s performance in the worst
possible light. This influence may well have been decisive.
Williams’s deliberations were brief, perhaps perfunctory, taking
only about half an hour. Williams testified in deposition that he
could not remember having considered the issue. Having no
personal knowledge of the facts, Williams, who was not
conversant with the possible age animus that may have
motivated Alemseghed’s recommendations (as filtered through
Bennett), was apt to defer to Bennett’s and Alemseghed’s
judgment. If Williams acted as the conduit of Alemseghed’s bias,
his innocence would not spare Liberty from liability for
Alemseghed’s procuring Slagel’s discharge because of her age.
3. Conclusion
Admittedly, a trier of fact could reasonably draw inferences
in Liberty’s favor from all this evidence. However, it could also
draw reasonable inferences in Slagel’s favor. On summary
judgment, inferences must be drawn in favor of the opposing
party.
32
Here, the trial court should have but failed to draw several
inferences in Slagel’s favor. Therefore, summary judgment was
improper.
C. Harassment and IIED
Discrimination in the workplace can constitute “extreme
and outrageous” conduct for purposes of IIED. (Renteria v.
County of Orange (1978) 82 Cal.App.3d 833, 834.) “When the
workplace is permeated with 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,” ’ the law is violated.” (Kelly-
Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409; Harris
v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23.)
The trial court acknowledged that Slagel raised a triable
issue regarding “a discriminatory motive by Alemseghed,” but
found that she “failed to disclose a triable issue of fact as to
whether she was exposed to discriminatory, retaliatory, or
harassing conduct.”
Given the discussion above, triable issues existed as to
Liberty’s justification for terminating Slagel. It follows that
triable issues exist as to whether Slagel was subjected to
discriminatory or retaliatory harassment. Therefore, summary
judgment was improper as to her claims for harassment and
IIED.
II. Lo’s Sanctions Motion
Slagel alleges that Lo abused her power as supervisor by
subjecting Slagel and other employees over the age of 40 to
heavier workloads and harsher performance-based standards
than younger employees, and to more stringent repercussions for
33
adverse performance than those to which counterparts under age
40 were subjected.
Lo moved for sanctions under subdivision (b)(3) of Code of
Civil Procedure section 128.7 (a party must abandon unsupported
claims). The trial court found Slagel’s action against Lo lacked
support because the only conduct alleged against Lo constituted
either personnel management actions or conduct that could not
reasonably be said to show harassment, such as that Lo joked
and talked with other employees on Slagel’s team more than with
her, “micromanaged her,” and once called her into her office to
ask if she was talking “bad about the company.” The court also
reasoned that Slagel’s allegations that Lo was motivated by
Slagel’s age, and that Lo singled out employees over the age of
40, were speculative and unsupported by any evidence. It
therefore granted Lo’s motion.
Slagel argues this was error. We agree.
An attorney who presents a pleading, motion or similar
paper to the court makes an implied certification to its legal and
factual merit. (Code Civ. Proc., § 128.7, subd. (b).) Specifically,
the attorney certifies that the “allegations and other factual
contentions have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.”
(Id. at subd. (b)(3).) If the court determines, after notice and a
reasonable chance to respond, that the attorney improperly
certified the document, it may impose an appropriate sanction
upon the attorney or party responsible for the violation. (Id. at
subd. (c).) A court may impose these sanctions if it concludes the
pleading was indisputably without factual merit. (Peake v.
Underwood (2014) 227 Cal.App.4th 428, 440.) To obtain
34
sanctions, the moving party must show that the party’s conduct
in asserting the claim was objectively unreasonable, meaning
“any reasonable attorney would agree that [the claim] is totally
and completely without merit.” (In re Marriage of Flaherty (1982)
31 Cal.3d 637, 650; Peake, at p. 444.)
We review a trial court’s decision to award attorney’s fees
and costs under Code of Civil Procedure section 128.7 for an
abuse of discretion. (Peake v. Underwood, supra, 227 Cal.App.4th
at p. 441.) We infer all findings necessary to support the order,
“presume the trial court’s order is correct[,] and do not substitute
our judgment for that of the trial court.” (Ibid.)
The trial court made preliminary and final findings about
these allegations, set forth in three paragraphs in the minute
order comprising its statement of decision.
The first two paragraphs concern the court’s preliminary
findings, the first setting forth its findings as to the legal
sufficiency of Slagel’s claims against Lo and the second setting
forth its evidentiary findings.
With respect to the claims’ legal sufficiency, the court
preliminarily found that Slagel’s decision to pursue a claim
against Lo was “objectively unreasonable.” This was so, the court
explained, because “[b]eing more jovial and conversational with
certain employees over others falls very short of the severe and
pervasive conduct needed to state a claim for harassment.”
“Similarly,” the court found, evidence of being ‘micromanaged’ or
questioned if you were maligning the company to others squarely
falls into managerial conduct.”
Regarding the evidentiary sufficiency of Slagel’s claims, the
court found that Slagel admitted in deposition that she had no
basis for her opinion that Lo micromanaged her due to her age,
35
“because she had no evidence of how Defendant Lo was managing
other claims adjusters.” The court found that Slagel’s allegation
that Lo disfavored older employees “was purely speculative, and
no basis for this belief was forthcoming. Subjective opinion,
unsupported, is not a basis for reasonable belief.” “Put simply,”
the court found, “there is no reasonable way Plaintiff or counsel
could have believed there was a tenable claim against Defendant
Lo in light of the available evidence,” nor that “the evidence
available could show malicious, oppressive, or fraudulent conduct
by Defendant Lo, or conduct ‘. . . so extreme as to exceed all
bounds of that usually tolerated by a civilized community.’ ”
The court followed these preliminary findings with a third
paragraph, setting forth its final finding:
“Accordingly, the Court finds that Defendant Lo has
submitted sufficient evidence to show that Plaintiff violated CCP
section 128.7(b) by pursuing a claim against Defendant Lo.
Specifically, Plaintiff failed to meet the substantive requirement
that the allegations and other factual contentions argued ‘have
evidentiary support or, if specifically so identified, are likely to
have evidentiary support after a reasonable opportunity for
further investigation or discovery,’ ” citing subdivision (b)(3) of
section 128.7 of the Code of Civil Procedure.
By using the words “accordingly” and “specifically” in its
final finding, the trial court evinced its intent to summarize the
findings set forth in the first two paragraphs of the order.
However, the summary concerns only the evidentiary sufficiency
of Slagel’s claims, not their legal sufficiency.
We therefore conclude that the court arguably found only
that Slagel’s claims lacked evidentiary support, not that they
36
would have been legally insufficient even if supported by
evidence.
To avoid sanctions under subdivision (b)(3) of Code of Civil
Procedure section 128.7, “ ‘the issue is not merely whether the
party would prevail on the underlying factual or legal argument,’
but rather whether any reasonable attorney would agree that the
claim is totally and completely without merit.” (Kumar v.
Ramsey (2021) 71 Cal.App.5th 1110, 1126.) Hence, the
evidentiary burden to escape sanctions under section 128.7 is
light. (Kumar, at p. 1126.) Slagel “must make a sufficient
evidentiary showing to demonstrate that [s]he made a reasonable
inquiry into the facts and entertained a good faith belief in the
merits of the claim.” (Ibid.) She need not amass even enough
evidence to create a triable issue of fact as would be required if
defendants had brought a motion for summary judgment, or
allege a valid cause of action, as required to overcome a
demurrer. (Ibid.)
As noted, the court found that Slagel had no evidence that
Lo disfavored older employees or micromanaged her due to her
age, “because she had no evidence of how Defendant Lo was
managing other claims adjusters.”
But Slagel also alleged that after Lo became her direct
supervisor, she subjected Slagel to unfair criticism and
threatened her. Slagel complained of discrimination to Lo, but Lo
did nothing to address her concerns. Instead, Lo participated in
a sham investigation despite learning of exculpatory evidence
from Slagel, resulting in Slagel’s termination. Slagel alleged that
Lo’s conduct rose to the level of discrimination and harassment
prohibited by FEHA.
37
We will assume for the purposes of argument that the trial
court’s finding is not wholly contained in the summary paragraph
setting forth its evidentiary findings, but also includes its legal
findings—that Lo’s “[b]eing more jovial and conversational with
certain employees over others” fell short of harassment, and her
micromanagement and hostile questioning fells within legally
acceptable managerial conduct.
We will further assume for the purposes of argument that
the trial court’s evidentiary finding was correct—that Slagel had
no evidence that Lo disfavored older employees or micromanaged
her due to her age.
These two findings would still not answer Slagel’s
allegations that Lo disregarded evidence that would have
exonerated Slagel, and participated in a sham investigation in
order to see her fired due to her age.
These allegations were supported by Slagel’s declaration
that Lo disregarded her complaint that Liberty was
discriminating against her due to her age, trying “to get rid of”
her, and “getting rid of people [her] age.” They were also
supported by Bennett’s report, which stated that Lo participated
in Bennett’s investigation, specifically in the interview during
which Slagel told Bennett the claim’s report matter could be
cleared up if they would only consult Ballard, which Bennett
refused to do. The trial court made no findings as to either the
legal sufficiency of these allegations or their evidentiary support.
Because the trial court found only that a subset of Slagel’s
allegations lacked legal and evidentiary support, and because
some of her allegations against Lo actually did have evidentiary
support, sanctions were improper.
38
III. Discovery Issues, Requests for a Continuance, and
Costs
Slagel argues that the trial court abused its discretion in
denying her motion to compel the further deposition of Williams,
which she needed in order to support her opposition to summary
judgment, and in denying a continuance to seek other discovery.
She also argues the court erred in awarding defendants costs.
Given the above discussion, and our partial reversal of
summary judgment, these issues are moot.
DISPOSITION
The judgment is reversed as to Slagel’s first through fifth
and tenth and twelfth cause of action. The costs and sanctions
awards are vacated. The judgment is otherwise affirmed. Each
party is to bear its own costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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