Bagley v. TRW, Inc.

• Decision Date: 29 July 1999
• Docket Number: No. B122440,B122440
• Citation: 73 Cal.App.4th 1092,86 Cal.Rptr.2d 909
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 6097, 1999 Daily Journal D.A.R. 7751 Richard D. BAGLEY, Plaintiff and Appellant, v. TRW, INC., Defendant and Respondent.

Page 909

86 Cal.Rptr.2d 909

73 Cal.App.4th 1092, 99 Cal. Daily Op. Serv. 6097,

1999 Daily Journal D.A.R. 7751

Richard D. BAGLEY, Plaintiff and Appellant, v. TRW, INC., Defendant and Respondent.

No. B122440.

Court of Appeal, Second District, Division 1, California.

July 29, 1999.

Edward J. Horowitz; Krakow & Kaplan, Marvin E. Krakow and Steven J. Kaplan, Los Angeles, for Plaintiff and Appellant.

Quinn Emanuel Urquhart Oliver & Hedges, Eric Emanuel, Scott B. Kidman and Johanna Y. Ong, Los Angeles, for Defendant and Respondent.

MIRIAM A. VOGEL, J.

A defendant moved for summary judgment or, in the alternative, summary adjudication of 130 "issues" attacking the plaintiff's seven causes of action. The trial court denied the motion for summary judgment, summarily adjudicated 27 of the issues in favor of the defendant, and denied the remaining 103 requests for summary adjudication. Relying on the same facts and the same law, the defendant thereafter made a second motion for summary judgment or, in the alternative, summary adjudication of each of the plaintiff's seven causes of action. The second motion was heard by a different judge, and summary judgment was granted. On the plaintiff's appeal, we conclude that the second motion was barred by subdivision (f)(2) of section 437c of the Code of Civil Procedure, ¹ and therefore reverse the judgment.

FACTS

Richard Bagley (then a 28-year-old accountant) went to work for TRW, Inc. in 1967. For more than 20 years, Bagley worked continuously for TRW, receiving many promotions, ultimately (in 1987) to Chief Financial Manager of the Space & Technology Group. From 1981 to 1991, Bagley was named by TRW as a "key employee"--which meant that, based upon performance, he ranked in the top one percent of all TRW employees. In August 1992, TRW announced a large-scale reorganization, effective January 1, 1993. Among other things, the Space & Defense Sector was eliminated, and the Space & Technology Group (where Bagley worked) was combined with the Electronics Systems Group to create a new Space & Electronics Group. Although not all of the management-level financial positions in the combined Groups and the new Space &

Electronics Group were eliminated, none of the remaining positions were offered to Bagley. On February 15, 1993, TRW notified Bagley that he would be laid off, effective August 9, and he was, in fact, laid off on that date

In August 1994, Bagley sued TRW, and in his first amended complaint (the operative pleading) alleged seven causes of action: (1) age discrimination, (2) wrongful termination in violation of public policy based on age discrimination, (3) gender discrimination, (4) wrongful termination in violation of public policy based on gender discrimination, (5) breach of an implied contract to terminate only for good cause, (6) breach of an express contract not to terminate employment in retaliation for reporting reasonably suspected illegal conduct, and (7) wrongful termination in violation of public policy based on the retaliation claim. In a nutshell, Bagley's complaint alleged that TRW's newly created Space & Electronics Group did in fact have 12 financial management positions, that events "closely" following TRW's reorganization resulted in the creation of yet another 12 financial management positions in the Space & Electronics Group, that Bagley was "eligible and qualified" for all of these 24 positions, and that TRW did not hire him because of his age (he was 54 at the time he was laid off), or his gender, or because he had, during the course of his employment at TRW, reported possible illegal conduct by the company.

In February 1996, TRW filed a motion for summary judgment or, in the alternative, summary adjudication of 130 separate issues related to "distinct claims" alleged by Bagley within each of his seven causes of action. ² TRW wanted the court to adjudicate Bagley's claims with regard to each of the 24 new positions. By way of example, TRW approached Bagley's first cause of action for age discrimination with 24 separate requests for summary adjudication, one for each position. With regard to each position, TRW submitted evidence to show that the particular position was filled by a person in the same protected age group as Bagley, or evidence to show that Bagley would be unable to prove that TRW's employment decisions were made for anything other than nondiscriminatory, business reasons. As to 19 of the 24 positions, TRW claimed that Bagley could not prove a prima facie case. As to the remaining positions, TRW claimed its failure to rehire Bagley was for a legitimate nondiscriminatory reason, and that Bagley would not be able to show pretext. Bagley opposed the motions.

In November 1997, the trial court (Hon. George Schiavelli) denied TRW's motion for summary judgment, granted summary adjudication "in part" as to each cause of action, and denied summary adjudication "in part" as to each cause of action. For example, Judge Schiavelli summarily adjudicated in favor of TRW Bagley's age discrimination claims that were contradicted by TRW's evidence that the positions had been filled by someone in the same protected

age group as Bagley. The remaining summary adjudication requests directed at the age discrimination claims were denied. In all, only 27 of the issues were summarily adjudicated in favor of TRW. The remaining 103 requests for summary adjudication were denied

In his order, Judge Schiavelli stated: "[M]any of the issues relating to which summary adjudication has been denied were not argued or supported by evidence.... Consequently, as [to] those issues concerning which the court has denied summary adjudication because of a lack of any evidentiary showing or argument by [TRW], the denial is without prejudice." The order makes it clear that, as to at least some of the positions, Bagley had presented sufficient evidence to create a triable issue of material fact concerning his prima facie case (by showing that he was more qualified for a position filled by a younger employee) or concerning the issue of pretext (by presenting evidence that a TRW vice president had made comments about wanting "young people, preferably females and minorities, people with energy and fresh ideas who would make an increasing contribution to the company over the following 15 to 20 years").

In January 1998, Judge Schiavelli was transferred to the Appellate Department of the Superior Court and this case was reassigned to the Honorable Wendell Mortimer, Jr. In March, TRW filed a second motion for summary judgment or, in the alternative, summary adjudication of each of Bagley's seven causes of action. The motion was made solely on the ground that TRW had a legitimate, nondiscriminatory reason for Bagley's termination, which Bagley could not prove was pretextual.

Over Bagley's opposition (on procedural grounds and on the merits), Judge Mortimer granted TRW's motion for summary judgment, finding that TRW had "established a legitimate, non-discriminatory reason for elimination of Bagley's position. [TRW] significantly downsized, eliminated Bagley's position because of reorganization, and offered Bagley another senior management position with a yearly compensation package of over $100,000. His termination under these circumstances cannot be proven to be pretextual." Bagley appeals from the judgment thereafter entered.

DISCUSSION

Bagley contends the second motion for summary judgment was improper because it was not based on new facts or new law or, indeed, on anything that had not already been presented at the time of the first motion. We agree.

Subdivision (f)(2) of section 437c provides that "a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the...