104 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 5.7.3 Summary judgment—not so fast In America generally, and particularly in the federal system, courts use summary judgment to weed out weak lawsuits. A defendant can file such a motion and expect it to be submitted for decision relatively quickly, often within five weeks. Not so in California state courts. Special pro-plaintiff notice requirement. A California party moving for summary judgment in an employment case (almost always the defendant) must give 75 days of notice.241 This period gives plaintiffs plenty of time to take multiple depositions and to conduct additional written discovery, specifically designed to defeat the summary judgment motion, by establishing issues of contested material fact that must be decided by a jury. The party opposing a motion for summary judgment (almost always the plaintiff in an employment case) also can often delay the hearing still further to conduct even more discovery. General judicial hostility toward summary judgment. Judicial hostility towards summary judgment in California employment cases arose vividly in Nazir v. United Airlines, a Court of Appeal decision that reversed a summary judgment while devoting many pages to criticizing the defense counsel (and leaving unscathed the corresponding conduct of the plaintiff’s counsel).242 Nazir injudiciously shared various judicial prejudices against summary judgment in employment cases: Summary judgment “is being abused, especially by deep pocket defendants to overwhelm less wellfunded litigants.”243 “[C]ourts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage.”244 “[M]any 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. … Its flame lit by [U.S. Supreme Court decisions encouraging the use of summary judgment motions to weed out nonmeritorious cases], ... summary judgment has spread ... through the underbrush of undesirable cases, taking down some healthy trees as it goes.’ ...This we cannot allow.”245 The Court of Appeal took another swipe at summary adjudication for employers in a lawsuit that a female construction worker brought to challenge inaccessible and unsanitary portable toilets.246 The trial court granted summary adjudication against the employee’s claim for punitive damages because, as a matter of law, no managing agent of the employer had engaged in or ratified any oppressive, malicious, or fraudulent conduct.247 The Court of Appeal reversed, concluding that the declaration of the alleged managing agent, filed in support of the motion for summary adjudication, did not state “sufficient evidence.”248 Even though the declarant clearly enumerated his limited job duties, the Court of Appeal held that a jury “could reasonably infer that the declarant was a managing agent because he “exercised substantial authority and discretion regarding a broad range of issues involving the Project, including compliance with [the employer’s] policies and the hiring, supervision, and laying off of Project employees.”249 To make matters still worse for litigation-weary employers, a 2018 FEHA amendment codified California’s hostility to summary adjudication in harassment cases by stating: “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’”250
RkJQdWJsaXNoZXIy OTkwMTQ4