Collins v. Hertz Corp.

• Decision Date: 10 October 2006
• Docket Number: No. B185398.,B185398.
• Citation: 50 Cal.Rptr.3d 149,144 Cal.App.4th 64
• Court: California Court of Appeals Court of Appeals
• Parties: Donna COLLINS et al., Plaintiffs and Appellants, v. HERTZ CORPORATION et al., Defendants and Respondents.

50 Cal.Rptr.3d 149

144 Cal.App.4th 64

Donna COLLINS et al., Plaintiffs and Appellants, v. HERTZ CORPORATION et al., Defendants and Respondents.

No. B185398.

Court of Appeal, Second District, Division 8.

October 10, 2006.

Law Offices of Mark Weidmann, Mark Weidmann and Lee Franck for Appellants.

Thelen Reid & Priest, Curtis A. Cole, Fresno, James H. Turken and Nicole M. Duckett, Los Angeles, for Respondents.

BOLAND, J.

SUMMARY

Two employees sued their employer and numerous individual employees and supervisors for workplace harassment and retaliation, violation of the Family Rights Act, and race, age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq., and public policy. Defendants moved for summary judgment. In opposition to the motion, the plaintiffs submitted voluminous papers which failed to comply with the requirements of Code of Civil Procedure section 437c (section 437c), or California Rules of Court, rule 342 (rule 342). The trial court afforded plaintiffs an opportunity to cure the defects and resubmit opposition papers which complied with applicable rules. The plaintiffs filed new papers, which also failed to meet the procedural requirements governing motions for summary judgment. The trial court struck the offending portions of the plaintiffs' separate statement, as well as portions of their responsive declarations. As a result, the majority of the defendants' facts were effectively left undisputed and, on that basis, summary judgment was granted. The plaintiffs appeal. We affirm.

STANDARD OF REVIEW

We generally review the trial court's decision to grant summary judgment de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68, 99 Cal.Rptr.2d 316, 5 P.3d 874.) However, a decision to grant summary judgment after striking portions of an opposing party's separate statement, because that party failed to comply with the requirements for the separate statement is reviewed for abuse of discretion. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208, 35 Cal.Rptr.3d 411 (Parkview Villas).) With these standards in mind, we turn to the facts and proceedings in this case.

PROCEDURAL AND FACTUAL BACKGROUND

In this employment discrimination action, appellants Lena Donald and Donna Collins asserted nine causes of action against respondent Hertz Corporation (Hertz): (1) racial discrimination; (2) retaliation for complaints of racial discrimination and/or harassment; (3) racial harassment; (4) retaliation for participating in matters concerning complaints of sexual harassment; (5) disability discrimination; (6) retaliation for requesting a reasonable accommodation or complaints of disability discrimination; (7) refusal to comply with the Family Rights Act (FRA), Government Code section 12945.1, et seq.; (8) retaliation for opposing violations of the FRA; and (9) age discrimination. Each claim allegedly violated both common law and one or more provisions of the Fair Employment and Housing Act, Government Code section 12940, et seq. (FEHA), or the FRA. A tenth cause of action for wrongful termination was alleged against Hertz by Collins alone. The individual respondents, eight Hertz employees or supervisors, were named as defendants only as to the third cause of action for racial harassment.¹

In October 2004, respondents moved for summary judgment or alternatively summary adjudication as to each cause of action, asserting that neither Collins nor Donald could prevail on any claim. In support of its motion, Hertz presented the following evidence:²

Lena Donald

Hertz hired appellant Lena Donald to work as a counter sales representative in August 1981. She worked at the company's Los Angeles International Airport (LAX) facility. Seven customer complaints were lodged against Donald between September 2002 and February 2003. Donald also received oral and written reprimands for repeated customer rudeness and poor work performance. Due to the length of her employment with the company, Donald was afforded multiple opportunities to improve her customer service skills. When no improvement occurred, Donald was terminated on February 18, 2003, for poor work performance. Shortly thereafter, Donald's union brought Hertz before the Board of Adjustment (Board) and a hearing was conducted regarding Donald's termination. The Board issued a binding decision concluding discipline was warranted against Donald for her poor work performance and customer complaints. However, in lieu of termination, the Board determined Donald should be suspended without back pay and its decision would function as a "final warning" to her regarding customer complaints. Donald was reinstated with no loss in seniority in early March 2003, and remains employed by Hertz.

Donna Collins

Donna Collins was hired by Hertz as a station manager at its LAX facility in June 1999. She made lateral job moves to bus manager and back to station manager, receiving a salary increase with each move. Collins' work performance never exceeded an evaluation of "average." Additionally, she received numerous reprimands for problems associated with a consistent inability to rectify problems regarding timing and scheduling of busses and drivers, mathematical errors, poor judgment, rudeness to customers, insubordination, and a general quality of work that Hertz deemed unacceptable. Collins was never demoted. However, based on poor work performance, Collins was given a "final letter of warning" on July 30, 2002. On September 27, 2002, Collins received another "final warning" placing her on probation for 60 days and stating that, if the company did not see significant improvements in her job performance during that period, she would be terminated. Collins took a medical leave of absence in late December 2002. She remained under a doctor's care at the time the summary judgment motion was pending, and has never returned to work. She is still employed by Hertz.

The motion for summary judgment or summary adjudication

By its motion, Hertz asserted neither plaintiff could prevail on any claim alleged against the company or any employee. In support of the motion, Hertz presented deposition testimony by Donald and Collins, in which each plaintiff admitted she had no knowledge of, and could not cite one example or instance of, discrimination or harassment — whether based on race/color, disability, medical status or age — taken against her by Hertz or any individual respondent. In addition, neither Donald or Collins was aware of any action taken against them that was motivated by a discriminatory purpose. In deposition testimony, Donald and Collins conceded they had never experienced or complained about sexual harassment at Hertz, or been retaliated against for complaining about sexual harassment. Hertz also presented deposition testimony in which Donald and Collins conceded they had never experienced harassment or retaliation by Hertz for requesting a reasonable accommodation for a disability, and had not been denied any right guaranteed under the FRA. Finally, Hertz presented evidence Collins is still its employee.

Appellants responded to Hertz's single memorandum of points and authorities, and single separate statement of undisputed material facts by filing three individual opposing memoranda of points and authorities — one on behalf of each then-plaintiff, four opposing separate statements, and nine declarations and amended declarations.

An initial hearing on the motion was conducted in early January 2005. At the outset, the trial court expressed a tentative ruling to grant summary adjudication as to certain claims and parties, and deny the motion in other respects. During oral argument, respondents' counsel complained that appellants' papers were not only unduly voluminous, they failed to comply with the rules of court governing motions for summary judgment or adjudication. The court agreed, withdrew and vacated its tentative ruling, and ordered appellants' counsel to re-file opposing papers which contained no substantive changes, but complied with the applicable procedural rules. The court provided the attorneys a summary of the statutes and rules of court governing summary judgment motions, and even read California Rules of Court, rule 342(f) (rule 342) into the record, particularly so that appellants' attorney, Lee Franck, would have no remaining confusion as to the court's expectations when he re-filed his clients' response to Hertz's separate statement.

"Corrected" opposing and reply papers were submitted. The motion was argued on March 14, 2004, and taken under submission. A written order was issued on June 13, 2005. By that order, the trial court found that appellants' re-submitted 105-page separate statement still failed to comply with the requirements of section 437c and rule 342(f) in numerous respects. For example, as to certain facts Hertz asserted were "undisputed," appellants had either "failed to unequivocally state whether that fact [was] disputed or undisputed," or simply had failed to address a purportedly undisputed fact at all. As a result, those facts were deemed undisputed as a matter of law. As to a multitude of other facts, the court found appellants failed to cite any supporting evidence to support their claim that a given fact was disputed, but simply incorporated other responses and/or as many as 132 other "`facts' set forth elsewhere, . . . making it difficult or impossible to determine the material disputed facts asserted by [appellants]." Those "facts" also were deemed undisputed based on appellants' failure to comply with rule 342(f). After ruling on the parties' evidentiary objections, the court found that Hertz satisfied its burden of demonstrating no triable issues of material fact existed, and granted summary judgment. The court subsequently awarded costs to Hertz. Appellants filed a notice of appeal from...