Demps v. San Francisco Housing Authority

• Decision Date: 09 April 2007
• Docket Number: No. A112815.,A112815.
• Citation: 57 Cal.Rptr.3d 204,149 Cal.App.4th 564
• Court: California Court of Appeals Court of Appeals
• Parties: Sherman DEMPS, Jr., Plaintiff and Appellant, v. SAN FRANCISCO HOUSING AUTHORITY et al., Defendants and Respondents.

57 Cal.Rptr.3d 204

149 Cal.App.4th 564

Sherman DEMPS, Jr., Plaintiff and Appellant, v. SAN FRANCISCO HOUSING AUTHORITY et al., Defendants and Respondents.

No. A112815.

Court of Appeal, First District, Division 2.

April 9, 2007.

Certified for Partial Publication.^*

Law Offices of Curtis G. Oler, Curtis G. Oler, San Francisco, for Plaintiff and Appellant.

Cholakian & Associates, Kevin K. Cholakian, Colin H. Jewell, San Francisco, David J. Streza, Larkspur; Walsworth, Franklin, Bevins & McCall, Randall J. Lee, Laurie E. Sherwood, San Francisco, for Defendants and Respondents.

RICHMAN, J.

Paraphrasing Alexander Pope, a court "should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday." (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) Vol. I, p. 340.)

We write today to "own" that the procedure we approved in Biljac Associates v. First Interstate Bank' (1990) 218 Cal App.3d 1410, 267 Cal.Rptr. 819 (Biljac was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that "`I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.' " (Id. at p. 1419, fn. 3, 267 Cal.Rptr. 819.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases and consistent with all published, postBiljac Court of Appeal opinions, that a trial judge's failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review.

The trial judge here expressly stated that he was relying on Biljac, and went on to grant summary judgment for defendants San Francisco Housing Authority (Housing Authority) and Michael Roetzer, its administrator. We must thus determine, on our independent review, whether that summary judgment was correct in light of the all the evidence in the record. We conclude that it was, and we affirm.

I. BACKGROUND

A. Demps and His Employment

Plaintiff Sherman Demps, Jr. is an African-American man, born in 1948; he was 57 years old when the events leading to this lawsuit took place. Demps has an Associate of Arts Degree from San Francisco City College, following which he attended two universities; he is 12 units short of a degree in hotel and restaurant management.

Following honorable service in the military, Demps had a broad employment background, working for United Airlines, various restaurant chains, and security firms. In 1994 Demps began employment with the Housing Authority as a security officer. In April 1996 he became a resident custodian at 1880 Pine Street (1880 Pine), a housing complex owned and operated by the Housing Authority, whose occupants are senior citizens and disabled people. Demps remained in that position until the fall of 2002, when he was terminated.

The Housing Authority entered into a memorandum of understanding with Service Employees International Union, Local 1877, of which Demps was a member in good standing. Apparently this memorandum governed the relationship between the Housing Authority and the union members, including custodians, but no issues are presented in connection with it.

The full range of Demps's duties at 1880 Pine were described in a job description introduced by him, included among which was that he "move and set up furniture and equipment." As distilled in the declaration of Ignatius Leonor, the Housing Authority District Director for District 3, Demps was responsible for performing a full range of custodial tasks, including picking up papers, garbage, and other rubbish, washing and cleaning stairways and hallways, inspecting the building and grounds for vandalism and unsafe or unhealthy conditions, and reporting evidence of problems with Housing Authority property or equipment.

As a condition of his employment as resident custodian, Demps was required to occupy a unit at 1880 Pine, though he was not under any lease. Under the memorandum of understanding, he was required to be available to the Housing Authority five days a week, twenty-four hours per day. He was also required to use Housing Authority property only for authorized activities in connection with his official duties. And Demps admitted—it was undisputed he responded—that as "a resident custodian [he] occupied a position of trust because he had direct contact with disabled and elderly residents and had access to their occupied residences."

Demps's declaration in opposition to the motion for summary judgment stated that he was "never informed by [his] supervisor, Ignatius Leonor, or anyone else at any time that [he] was not performing [his] job in a competent manner." No directly contrary evidence was introduced by the Housing Authority, nor did it take issue with Demps's statement that he never received a work performance evaluation. In short, Demps's employment history at the Housing Authority until 2002 was generally uneventful—with the lone, but significant, exception of his relationship with Linda Bray, who was apparently Demps's antagonist from the beginning and would become the protagonist in the events which would ultimately lead to his termination.

Bray was a Caucasian woman in her 50s, and had been a tenant at 1880 Pine before Demps began his employment there. And to put it mildly, she and Demps did not get along. Demps's declaration describes their relationship as follows: "11. Almost from the very beginning of my employment as Resident Custodian at the 1880 Pine Street address, I began experiencing extraordinary nonstop harassment and extreme abuse by Linda Bray, a white female tenant there. That egregious harassment continued throughout the full term of my employment with the full knowledge of and aided, abetted and encouraged by defendants Michael Roetzer and the San Francisco Housing Authority [when referred to collectively, defendants]. [11] 12. Linda Bray's abhorrent abuse over the several years of my employment, included but was not limited to false and malicious complaints to my supervisors relating to my work performance and conduct, constant harassment of persons visiting my unit, abusive verbal and physical attacks upon my roommate, continuously confronting me in a hostile, provocative manner, constantly addressing and referring to me as a `pimp,' `drug dealer' and `pimping drug dealer,' continuously filing false police reports against me, necessitating my filing a civil action for defamation against her. [¶] Linda Bray also constantly without cause confronted tenants in the building in a hostile threatening manner with a variety of baseless accusations." Demps's declaration attached copies of documents reflecting what he called "the endless stream of harassment conduct by Linda Bray," and went on to state that he had "copies of 100 or more documents including false police reports, and vexatious civil actions reflecting the abuses of Linda Bray against me and others."

There was no declaration from Bray. However, defendants' reply to Demps's statement of material facts, citing various portions of Demps's deposition and his response to defendants' own separate statement, responded as follows: "With respect to Linda Bray, at no time did Demps make a complaint about an unlawful employment practice under the FEHA. Nor did he ever complain about Linda Bray to Michael Roetzer. [Citation.] Demps conceded that Linda Bray's comments were racially neutral. [Citation.] ... He has provided no evidence that Linda Bray harassed people based on their age, race, sex, or any other protected classification. Most notably, Demps believes that Linda Bray's conduct was motivated not by his status as a member of any protected class, but was the result of a personal animus based on Demps's support of another tenant in a court matter involving Ms. Bray. [Citation.] Finally, Demps explicitly stated that he was never sexually harassed by Ms. Bray. [Citation.]"

Beyond the rather conclusory recitations quoted above, the actual facts involving Bray can be gleaned only from certain of the documentary evidence introduced by Demps himself. These exhibits included numerous police incident reports (most of which were complaints by Bray and one a complaint against Bray) and an order from the San Francisco Superior Court on a petition for injunction prohibiting harassment brought by Bray, but which resulted in an injunction against her.

Demps's documentary evidence also included four letters he wrote, on April 13, 1999, an unspecified date in January 2000, August 7, 2000, and May 31, 2001. The first of these letters, to Housing Authority Property Manager Henry Khan, responded to the charge by Bray that Demps called her a "bitch." And the third letter confirmed that Demps had been advised by Khan that "there was nothing he could do" about Bray. Interestingly, and as particularly pertinent to the issue here, in that third letter Demps referred to "someone complain [sic] about me that I was bringing in homeless people to work for me." This, as noted, was in August 2000.

However bad the relationship between Demps and Bray had been, it sunk to its nadir in July 2002 when Bray accused Demps of attempting to kill her. The details of the alleged crime are nowhere in the record, nor are the details of the actual proceedings filed. What is in the record is Demps's declaration testimony that at some point "the District Attorney's office subsequently terminated that unfounded criminal case against [him] and dismissed the case."

The criminal charge of attempted murder caused the Housing Authority to investigate, in the course of which it learned information that would lead to the termination of Demps's employment. What precisely occurred in connection with this investigation'...