What Nazir has meant for summary judgment in employment-discrimination cases

Who gets the last word? A guide to countering defendant’s reply evidence

2014 October

According to EEOC statistics, discrimination complaints are at all-time highs. Total charges filed with the EEOC hovered between 73,000 and 84,000 between 1997 and 2007. Then starting in 2008, total charges skyrocketed past 90,000 and nearly breached the 100,000 mark several times between 2010 and 2012. (http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm.) This rising tide of discrimination complaints has been met with skepticism and even outright hostility by trial court judges and courts of appeal, resulting in more summary judgment motions being granted and fewer discrimination victims obtaining justice.

Nancy Gertner, a former U.S. federal district court judge in the District Court of Massachusetts and now-Harvard Law School professor, observed that judges in general think “so little … of discrimination claims that they rarely allow them to get to a jury at all”. (http://www.huffingtonpost.com/judge-nancy-gertner/the-virtual-repeal-of-kennedy-johnson-administrations-signature-achievement_b_4311759.html.) Gertner goes on to recount the story of one particularly egregious grant of a summary judgment motion:

Consider the case of the Todds, African Americans who sued the Whortons, the white owners of the club where they worked for creating a racially hostile environment . . . [Mr. Whorton] made other comments such as: “What do your people want? When this was a white club, my customers used ashtrays. Ever since the n——-s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n——-s is that n——-s put their cigarettes out on the floor.” [Mr. Whorton] complained to Mr. Todd that he could not trust African Americans, saying, “Look at me! I know you don’t like this — n——-s don’t appreciate s—t.”

One federal judge in Georgia did not think the above was enough to constitute a racially hostile work environment. The court threw the case out on summary judgment. (Ibid.)

Gertner is far from alone in observing this judicial hostility to employment claims. Numerous studies have confirmed it. A 2007 Federal Judicial Center study analyzed 17,969 cases that had terminated in the seventy-eight federal district courts and found that 73 percent of summary judgment motions in employment discrimination cases were granted, nearly all in favor of defendants, whereas the average for all civil cases was just 60 percent. (http://www.fjc.gov/public/pdf.nsf/lookup/sujufy06.pdf/$file/sujufy06.pdf.) Other pundits have noted that, unlike most other plaintiffs, employment discrimination plaintiffs do substantially worse in judge trials than in jury trials, winning only 19.62 percent of the time before judges compared to 45.53 percent for all other plaintiffs. (Clermont & Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 HARV. L. & POL’Y REV. 103 (2009).) As for those precious few employment-discrimination plaintiffs who somehow manage to run the gauntlet and prevail at trial, a study of federal appellate court cases from 1992 to 2000 showed they won fewer than 17 percent of appeals, even when factoring in those plaintiffs who had prevailed at the lower court level. (http://researchnews.osu.edu/archive/adastudy.htm)

All this is to say that, if you plan on bringing an employment-discrimination case, you better get ready to face a motion for summary judgment, or two. This is particularly so in light of a trilogy of U.S. Supreme Court decisions issued in 1986: Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In this trilogy, the U.S. Supreme Court heralded a new era of the favored (formerly disfavored) summary judgment, actively encouraging trial courts to use it to weed out and dismiss claims. California courts responded in kind.

In 2001, the California Supreme Court held that the purpose of 1992 and 1993 amendments to California’s summary judgment law, Code of Civil Procedure section 437c, was “to move summary judgment law” in this state “closer” to its “federal” counterpart as clarified in Celotex, Anderson, and Matsushita, in order to liberalize the granting of such motions. The court further noted that these amendments had changed summary judgment law “dramatically,” citing a string of court of appeal decisions liberalizing the grant of summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 848.)

Striking defense reply evidence and reply separate statements

As standards for granting summary judgment motions are increasingly liberalized, defendants have become bolder in the use of abusive tactics. To counter them, plaintiffs need to get more aggressive.

One particularly abusive defense tactic is the use of reply evidence and reply separate statements. In theory, plaintiffs opposing a motion for summary judgment are supposed to get the “last word,” at least when it comes to submitting evidence and the separate statement. In practice, it is defendants who increasingly get it, as they resort to the practice of submitting voluminous reply evidence and reply separate statements with their reply briefs. Some cynics even suggest defendants intentionally bring weak motions for summary judgment, so as to “surprise” plaintiffs with their strongest evidence and arguments in their reply briefs and deny plaintiffs a chance to respond in the written record.

In 2009, the California Court of Appeal dealt with a particularly egregious example of this tactic. In Nazir v United Airlines, Inc., (2009) 178 Cal.App.4th 243,248, the Court of Appeal was faced with what it called the “poster child” for abuse of the motion for summary judgment by deep pocket defendants – “what may well be the most oppressive motion ever presented to a superior court.”

The Nazir lawsuit was hard fought, as can be seen from the sheer volume of the filings on motion for summary judgment/adjudication. The Nazir court took the time to inventory the number of pages of the filings, noting that the defendants had filed a 1,056-page motion for summary judgment/adjudication, the plaintiff had filed a nearly 3,000-page opposition and the defendants had filed a 1,150-page reply, as well as 764 evidentiary objections. The court concluded that the defendants were mostly to blame for the runaway verbiage: “Suffice to say that there is plenty of blame for the ‘girth’ the trial court criticized, most of which, we conclude, lies at the feet of defendants.” (Id., at p. 252)

In an unusual step, the court also took the defense counsel to task for being a repeat offender, noting “[t]his is not the first time that lead counsel for defendants [Nancy Pritikin of Littler Mendelson] has been criticized for a defective separate statement. (See Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95, 105.)” (Id. at 36, n. 2.)

The Nazir court held that, while the defendants were permitted to respond to the plaintiff’s additional material facts contained in their separate statement, the defendants’ reply should not have included a reply separate statement or reply evidence:

Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts. Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.” … The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of “Exhibits and Evidence in Support of Reply.” No such evidence is generally allowed.

(San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) (Id., at p. 249 and 252.)

According to San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316, a defendant’s use of a reply separate statement and reply evidence violates the due process right of the plaintiff:

In exercising its discretion whether or not to consider evidence undisclosed in the separate statement, the court should also consider due process implications noted in United Community Church. “The due process aspect of the separate statement requirement is self evident – to inform the opposing party of the evidence to be disputed to defeat the motion.”

[citation omitted].

The key takeaway here is, if the defendants file a reply separate statement or reply evidence in a motion for summary judgment, as is increasingly the case, put your objection on the record, citing Nazir and San Diego Watercrafts, and ask the Court to strike them

How to do that is a matter of some debate. Most practitioners suggest making an objection in a separate filing, which need not be more than a few pages, entitled something along the lines of “Objection and Request to Strike Defendants’ Reply Separate Statement and Reply Evidence.” Others take a more aggressive stance and advocate making an ex parte application for an order striking the reply separate statement and evidence. The problem with the latter approach is that it can be hard to predict how any particular jurist will respond to such use of an ex parte. At least a few are likely to react negatively. In any case, practitioners would be wise to avoid getting too lengthy and argumentative with the objection, as that runs the risk of the Court finding that the objection is an impermissible “surreply” brief which is sanctionable. As always, consider the jurist you are before and the circumstances of your case when deciding on the best course of action.

Responding to blunderbuss objections to evidence

Another abusive defense tactic is blunderbuss objections to the evidence which plaintiffs marshal in an attempt to establish triable issues of fact. It is not uncommon for defendants to go overboard with their objections in an attempt to overwhelm both the plaintiff and the court. In Nazir, defendants lodged no less than 764 objections to plaintiff’s evidence. The tactic worked; the trial court dealt with the deluge by essentially throwing up its hands and issuing a blanket ruling, devoid of any reasoning, that sustained 763 of the defendants’ 764 objections. That ruling removed most of plaintiff’s evidence from consideration, making the grant of summary judgment almost an inevitability.

Similarly, in Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-12, the court noted trial courts’ growing failure to rule on objections “because it has become practically impossible for the trial court to address each of the innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become.” See also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical”].)

Some courts respond to blunderbuss objections by sustaining them in a blanket ruling, as was the case in Nazir. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 857 [court’s blanket ruling sustaining all objections was “hardly a ruling,” provided no meaningful basis for review, and could be treated as a failure to rule].) Other courts respond by declining to rule at all, finding that “it would be ‘a horrendous, incredibly time-consuming task’ to rule individually on each piece of evidence and that such rulings ‘would serve very little useful purpose.’” (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, fn. 3.)

Both approaches are improper.

In the case of blanket rulings sustaining objections, the Nazir court held that it was an abuse of discretion:

It is probably enough to note that the evidence is before us because defendants’ objections could be considered waived, as not having been ruled on by the court, as we held in Demps v. San Francisco Housing Authority, supra, 149 Cal.App.4th at p. 578,: ‘[W]e hold here ... that a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections, and if it does not, the objections are deemed waived and the objected to evidence included in the record. It is true that the trial court “ruled,” however conclusorily, that all objections save one were sustained. This is hardly a ruling, as it could not provide any meaningful basis for review.’

(Nazir, 178 Cal.App.4th at p. 255, cited with approval in Serri, 226 Cal.App.4th at p. 857.)

The Nazir court found many of the defendants’ objections patently frivolous and should never have been sustained: some of the “objections did not even assert any basis for the objection;” some of the “objections were to [the] plaintiff’s testimony about his dates of employment, his religion, his skin color, and his national origin;” “[o]ver 250 of the sustained objections failed to quote the evidence objected to, in violation of California Rules of Court, rule 3.1354;” 27 of the evidentiary objections “were to [the] plaintiff’s brief, not his evidence;” and “many of the objections were frivolous.” (Id. at 178 Cal.App.4th at pp. 256, 257, 264.)

After Nazir, the Supreme Court held in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, n.8 Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, on this point. Later decisions by the Court of Appeal have clarified that while a trial court must rule on each individual evidentiary objection, it need not supply a reason for each individual ruling. In Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1370, the court explained, “[W]e strongly reject appellants’ notion that Nazir requires the trial court to provide a separate reason for every evidentiary objection that it overrules when, as here, the court is inundated with objections under circumstances suggesting an abuse of the litigation process.” Similarly, in Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 512, n. 15, the court explained that as long as the trial court rules on each objection, “nothing more is necessary.”

Interestingly, the Nazir court held that the trial court’s blanket ruling sustaining the defendants’ objections amounted to a refusal to rule, resulting in a waiver by defendants of their evidentiary objections on appeal. By contrast, the Supreme Court in Reid held that a trial court’s refusal to rule is treated as an overruling of objections which are not waived on appeal. (Reid v. Google, Inc., 50 Cal.4th at p. 512.)

While Reid did not go so far as to prohibit blunderbuss objections, the Supreme Court “encouraged” parties “to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion. In other words, litigants should focus on the objections that really count. Otherwise, they may face informal reprimands or formal sanctions for engaging in abusive practices. At the very least, at the summary judgment hearing, the parties – with the trial court’s encouragement – should specify the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary judgment motion. (Ibid.)

The key takeaway here is, if defendants make blunderbuss objections, emphasize that blunderbuss objections are improper, particularly given the Court’s burdensome duty to expressly rule on them per Nazir and Reid. Defendants should be required at the hearing to narrow their objections down only to the most critical ones. If the court nevertheless elects not to rule expressly on objections, cite section 437c of the California Code of Civil Procedure, requiring court to “consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court” (emphasis added). In other words, all of your evidence should be considered by the court in determining whether there is a triable issue of fact.

Conclusion

In Nazir, the court observed that the summary judgment pendulum may have swung too far against plaintiffs:

We ... do observe that many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be. In the colorful language of Chief Judge Wald: “Its flame lit by Matsushita, Anderson, and Celotex ... summary judgment has spread ... through the underbrush of undesirable cases, taking down some healthy trees as it goes. This, we cannot allow.”

[citations omitted, emphasis added]. (Nazir, 178 Cal.App.4th at p. 331.)

But five years after Nazir, there is little indication of the pendulum slowing (particularly when it comes to employment discrimination cases). Abusive tactics such as reply evidence, reply separate statements and blunderbuss evidentiary objections are increasingly used by defendants to overwhelm both plaintiffs and courts and to turn summary judgment motions into wars of attrition. Countering such abuse requires that plaintiffs get aggressive in calling them to the court’s attention. This means objecting in the written record to, and asking to strike, improper reply evidence and separate statements, highlighting the impropriety of blunderbuss evidentiary objections and requesting that defendants be required to narrow their objections to the most critical ones. Do these things and, with a little luck, you may find the pendulum swinging in your favor.