Stock-Hendel v. Fox Dig. Enters., B309869

CourtCalifornia Court of Appeals
Writing for the CourtROTHSCHILD, P. J.
PartiesTHOMAS STOCK-HENDEL, Plaintiff and Appellant, v. FOX DIGITAL ENTERPRISES, INC., Defendant and Respondent.
Docket NumberB309869
Decision Date04 October 2022

THOMAS STOCK-HENDEL, Plaintiff and Appellant,

FOX DIGITAL ENTERPRISES, INC., Defendant and Respondent.


California Court of Appeals, Second District, First Division

October 4, 2022


Order Filed 10/21/22

APPEAL from the judgment of the Superior Court of Los Angeles County, No.19STCV04334 Lia Martin, Judge.

Law Offices of Jeffrey C. McIntyre, Jeffrey Curran McIntyre and Robert Garcia, Jr., for Plaintiff and Appellant.

Mitchell, Silberberg & Knupp, Seth E. Pierce and Bradley J. Mullins for Defendant and Respondent.



The opinion in the above-entitled matter filed on October 4, 2022 is modified as follows: 1. On page 5, the paragraph that begins with "At that time, the finishing editors" is entirely deleted and replaced with the following paragraph:

At that time, the finishing editors working regularly at Fox- that that is, an average of at least four shifts per week-were Stock-Hendel, D.F., J.T., P.Wi., P.Wa., D.Y., and R.C. These editors


ranged in age at that time from 51 to 66 years old. Fox also employed "fill-in and/or more part-time finishing editors" as needed. A fill-in editor provides coverage when other editors are sick, on vacation, or when coverage is otherwise needed, so such fill-in editors' shifts vary considerably depending on things like regular editor absences or whether it is premiere season. In October 2017, these fill-in/part-time editors were T.R., D.W., and J.C. These editors had an age range of 44 to 55 years at the time. Stock-Hendel, at 66 years, was the oldest of all the finishing editors.

2. On page 6, the paragraph that begins with "The October 2017 shift reductions" is entirely deleted and replaced with the following paragraph:

The October 2017 shift reductions were as follows: P.Wa. (then 55 years) was reduced from five to four shifts per week; P.Wi. (then 63 years) was reduced from four to three shifts per week; J.T. (then 65 years) was reduced from five to four shifts a week; Stock-

Hendel (then 66 years) was reduced from four to two shifts per week; and T.R. (then 54 years), who had typically been working one shift per week as a fill-in editor, stopped receiving any shifts. The shift allocations for D.F. (then 59 years), D.Y. (then 54 years), and R.C. (then 50 years) did not change, and the shifts typically offered to D.W. (45 years)-who, as a fill-in editor, did not have regularly scheduled shifts-increased from typically one to two shifts per week to typically two shifts per week.

3. On page 6, the two sentences that begins with "The cuts they decided to implement" and end with "fill-in shifts, which he declined." are entirely deleted and replaced with the following two sentences:


The cuts they decided to implement ultimately affected three editors, beginning in June 2018: J.T. (then 65 years), whose shifts were reduced from four to three per week, and Stock-Hendel (then 66 years) and P.Wi. (then 64 years), who both had their shifts reduced to zero. Stock-Hendel and P.Wi. remained on the roster. Later in 2018, Fox offered Stock-Hendel fill-in shifts, which he declined.

4. On page 8, the sentence that begins with "Specifically, his declaration provided" is entirely deleted. That sentence is replaced with the following sentence:

Specifically, his declaration provided that he "was the oldest finishing editor[ ]," that of "the other two oldest finishing editors, namely [P.Wi.] and [J.T.], both of whom were in their middle 60's, one was also eliminated from the schedule, and one had his number of shifts reduced.

5. At the top of page 10, the sentence that begins with "In addition, Fox offered" is entirely deleted and that sentence is replaced with the following sentence:

In addition, Fox offered D.Y.'s deposition testimony that "[t]he general complaint is that [Stock-Hendel] was argumentative [¶] . . . [¶] [a]nd that he asked questions before he thought things through."

6. On page 11, the three sentences that begin with "Stock- Hendel also offered the declaration," and end with "easily grasped what was needed." are entirely deleted and replaced with the following three sentences:

Stock-Hendel also offered the declaration of Mark Bonn, a promo editor who worked at Fox from 1988 to 2016, indicating Stock-


Hendel was one of two editors (the other being P.Wi.) given the most complex or difficult projects. According to Bonn, Bonn requested Stock-Hendel handle his promos while working at Fox because Stock-Hendel required the least amount of direction and explanation and because, of all the finishing editors with whom Bonn worked, Stock-Hendel and P.Wi.'s work "was by far the best done and most error free." Also according to Bonn, P.Wi. and Stock-Hendel were always cooperative and easily grasped what was needed.

7. At the bottom of page 12, the bullet-point sentence that begins with "The court sustained objections to the testimony" is entirely deleted and replaced with the following bullet-point sentence:

• The court sustained objections to the testimony of P.Wa. indicating that, in his experience, the questions he heard Stock-Hendel ask were routine.

8. On page 13, the sentence that begins with "It is also noted that an editor" is entirely deleted and replaced with the following sentence:

It also noted that an editor continued to work at Fox after Stock-Hendel's termination who was not significantly younger than Stock-Hendel (specifically, J.T., who was 16 months younger).

9. At the bottom of page 18 through the top of page 19, the sentence that begins with "Namely, Stock-Hendel argues" is entirely deleted and replaced with the following sentence:

Namely, Stock-Hendel argues that an inference of age discrimination arises from the circumstances of his firing, because Fox chose him, the oldest of the 10 finishing editors, as well as


another of the oldest finishing editors (P.Wi.), to lose all shifts in 2018.

10. On page 20, the sentence beginning with "Returning to our summary judgment analysis" is entirely deleted (including fn. 2) and replaced with the following sentence and footnote:

Returning to our summary judgment analysis, we note that Stock-Hendel's status as the oldest finishing editor in the group of finishing editors at Fox in 2017 and 2018[1] (and the status of J.T. and P.Wi. as the second and third oldest, respectively) is evidentially insignificant, given the size of that group.

11. On page 21, the sentence that begins with "Similarly, some of the finishing editors" is entirely deleted and replaced with the following sentence:

Similarly, some of the finishing editors who continued to be employed at Fox following the 2018 shift reductions were significantly younger than Stock-Hendel, but some-in particular J.T., who was 65 years at the time, only 16 months younger than Stock-Hendel-were not.


12. On pages 21-22, the text of footnote 3 is deleted and replaced with the following text:

The average age of the finishing editors terminated in 2018 (Stock-Hendel and P.Wi.) was 65 years. The editors retained in 2018 were D.F., J.T., P.Wa., D.Y., R.C., T.R., D.W., and J.C. The average age of that group was 53.875 years.

These modifications do not constitute a change in the judgment.



Thomas Stock-Hendel appeals from a judgment dismissing his age discrimination lawsuit against his former employer, Fox Digital Enterprises, Inc. (Fox). Stock-Hendel contends the trial court erred in granting summary adjudication for Fox on two key issues: (1) whether Stock-Hendel could make a prima facie case, and (2) whether the nondiscriminatory reason Fox identified for reducing and ultimately eliminating Stock-Hendel's shifts was pretextual. Stock-Hendel further challenges certain evidentiary rulings the court made in connection with Fox's summary judgment/adjudication motion.

We affirm. The trial court correctly concluded that Fox identified evidence establishing Stock-Hendel could not prove circumstances supporting an inference of discriminatory intent, a requisite element of a prima facie case for age discrimination. We further hold that the trial court did not abuse its discretion in permitting Fox to rely on certain evidence it identified for the first time at the reply stage of Fox's summary judgment/adjudication motion. Finally, as to the remainder of Stock-Hendel's challenges to the court's evidentiary rulings, even assuming, for the sake of argument, that these rulings were in error, such error would not affect our analysis and ultimate conclusion on appeal.


The following background is based on the evidence the parties presented at the summary judgment stage. Unless the source of the information is indicated, it is undisputed.

A. Stock-Hendel's Duties as a Finishing Editor at Fox

In November 1989, Fox hired Stock-Hendel as a finishing editor. A finishing editor electronically finishes advertising


"promos" for Fox television programs. Room producers assign work to the finishing editors, provide specific instructions regarding needed edits, and approve the final promos.

At Fox, finishing editors are assigned to an editor's bay, which is a separate office filled with required electronic equipment. Room producers typically spend their shift in an editor's bay. The editor's bay, in effect, acts as the room producer's office and the editor's office, and the room producers directly assist, review the work of, and answer the questions of the editors with whom they share an office. As there were fewer room producers than editors, some finishing editors, including Stock-Hendel, generally worked without a room producer in their editing bay.

All finishing editors asked questions of room producers. Because a room producer was not typically in his editing bay, when Stock-Hendel needed to obtain information to...

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