Serri v. Santa Clara University (226 Cal. App. 4th 830, 2014)

Opinion

MARQUEZ, J.

Plaintiff and appellant Conchita Franco Serri brought this action against her former employer (defendant and respondent Santa Clara University (the University)) and other individually named defendants after the University terminated her employment. Serri had worked as the University’s director of affirmative action since 1992. The University terminated her employment in 2007 because she failed to produce affirmative action plans for three consecutive years, even though her job required that she produce an affirmative action plan annually. The University also terminated her employment because she made misrepresentations about the plans that she had failed to prepare.

Notwithstanding Serri’s failure to produce the required plans—and the misrepresentations she made about the nonexistant plans—Serri filed a complaint alleging that she was wrongfully discharged from her employment based on her race and ethnic origin. Her complaint also contained causes of action for breach of her employment contract, retaliation and harassment in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), violation of the federal Equal Pay Act of 1963 (Pub.L. No. 88-38 (June 10, 1963) 77 Stat. 56), defamation, intentional and negligent infliction of emotional distress, and interference with prospective economiq advantage. Defendants moved for summary judgment, or in the alternative, summary adjudication of each of Serri’s causes of action.

We are asked to determine whether an employee who is terminated for failing to perform an important job function can avoid summary judgment by arguing, based on expert evidence obtained for the purpose of opposing a motion for summary judgment or summary adjudication, years after the employee’s termination, that the failure to perform did not and would not result in any adverse consequences to the employer. We hold that after-acquired expert evidence that there were no adverse consequences from an employee’s failure to perform does not create a triable issue of fact on the question whether the employee failed to perform his or her job duties and thus has limited relevance, if any, to the question of discrimination.

In this case, expert evidence that the failure of performance did not harm the University, acquired years after Serri was terminated, did not create a triable issue of material fact on the question whether the University’s stated reasons for terminating Serri were untrue or pretextual such that a reasonable trier of fact could conclude that the employer engaged in discrimination. Before she was terminated, Serri told the University her failure to prepare an affirmative action plan could have adverse consequences, including the loss of federal grants. That the University ultimately suffered no adverse consequences did not create a triable issue on the questions whether the University had a legitimate, nondiscriminatory reason to terminate her employment or whether its reasons for doing so were untrue or pretextual. We also reject Serri’s other contentions. Accordingly, we will affirm the summary judgment.

Facts

For almost 15 years, from the latter half of 1992 until March 2007, Serri was employed by the University as its director of affirmative action. Her duties included handling and either mediating or investigating complaints filed by faculty, students, and staff under the University’s anti-discrimination and anti-harassment policy, which the University refers to as “Policy 311.” Serri’s duties also included preparing the University’s annual “Affirmative Action Plan” and providing sexual harassment training to the University staff. Serri testified in deposition that since the University was a federal contractor, federal regulations required the University to prepare an annual AAP. In a memo she wrote in November 2005, Serri described the AAP as “pivotal and essential for us for obtaining and retaining federal grants.” Serri, who is Puerto Rican, was 54 years old when the University terminated her employment.

At all times relevant to this case, defendant Father Paul Locatelli was the president of the University, defendant Robert Warren was the University’s vice-president of administration and finance, and defendant Molly McDonald was the University’s assistant vice-president of human resources. McDonald reported to Warren, and Warren reported directly to Father Locatelli. Until April 2006, Seni also reported directly to Father Locatelli. McDonald supervised Serri from April 2006 until Serri’s termination in March 2007.

Defendants John Ottoboni and Julie Veit are attorneys. Veit is Ottoboni’s daughter. Before 2007, they both worked for a law firm that served as outside counsel to the University. In the fall of 2006, the University hired Ottoboni as its in-house general counsel, effective January 1, 2007. In late January 2007, Veit started working for the University as an in-house legal associate to the human resources department. Veit reported to McDonald, not Ottoboni.

The University’s Affirmative Action Plan

Serri testified in deposition that there were three major components to the University’s Affirmative Action Plan. The first component had two parts: (1) a narrative report that Serri prepared, and (2) several statistical analyses that her assistant Linda Jocewicz prepared based on data provided by the human resources department. The AAP narrative contained the University’s “critical self analysis” and discussed specific topics as required by the Code of Federal Regulations. The statistical analyses part included a workforce analysis, a job group analysis, and an availability analysis (“an estimate of the number of qualified minorities and women available for employment” in specific job groups). The other two components of the AAP were the “applicant flow” and the “glass ceiling part,” which Serri testified she never prepared because she was never given the data she needed to complete those components.

Events in 2003 and 2004

McDonald started working for the University in May 2003. Shortly thereafter, Serri told McDonald that she had had difficulty obtaining the data she needed to complete the statistical portion of the AAP’s from McDonald’s predecessor. McDonald promised her full cooperation and encouraged Serri to contact her if she encountered any problems with the human resources department.

Serri reported directly to Father Locatelli for many years. In about 2003, Father Locatelli began considering changing their reporting relationship and having Serri report to McDonald instead. Serri objected and wrote him a letter in December 2003, in which she explained why she did not believe it would be a good idea to make the affirmative action office part of human resources. In June 2004, Father Locatelli questioned Serri’s role in investigating faculty complaints. After consulting with Ottoboni and Veit (who were then outside counsel), Father Locatelli advised Serri that the University needed to make changes in policies, procedures, and reporting relationships related to the affirmative action office, but no such management changes were made in 2004 or 2005.

Serri’s Wage Complaint

On November 7, 2005, Serri sent Father Locatelli a letter in which she complained about an “unjustifiable salary disparity” between her salary and that of Charles Ambelang, a male employee in the human resources department whose job functions Serri alleged were comparable to her own. Serri said she had informed McDonald of the salary disparity in March 2005. Her letter asked Father Locatelli to “remedy this inequity . . . without further delay.”

April 6, 2006 Meeting Between Serri, Father Locatelli, McDonald, and Veit

In 2006, Father Locatelli ultimately determined that he did not have sufficient time to manage Serri’s department and decided that Serri would report directly to McDonald, but would provide him with monthly updates regarding her activities, thus creating what the parties referred to as a “dotted-line” reporting relationship between Serri and Father Locatelli.

Father Locatelli met with McDonald and Serri on April 6, 2006, to discuss the reporting changes and other issues. At that meeting, Father Locatelli reassured Serri that the change in their reporting relationship was not a demotion. He noted that other reporting changes were also taking place.

Shortly after the April 6, 2006 meeting, Serri took a medical leave of absence from the University to have surgery. Serri returned from her medical leave on June 20, 2006. Shortly thereafter, the University offered to make an equity adjustment to her salary, increasing it from $104,000 to $118,350 per year retroactive to March 1, 2005, the date Serri first informed McDonald of the alleged salary disparity. The University also offered Serri a 3.5 percent merit increase for the 2006-2007 academic year, which brought her salary up to $122,492 per year effective July 1, 2006. At that time, the University was in the process of having an outside consultant, Mercer Human Resources Consulting (Mercer), review the salaries of certain University employees, including Serri’s salary. As part of that process, McDonald asked Serri to prepare a written description of her job for Mercer, which Sem completed on June 21, 2006. The University told Serri that if Mercer determined that an additional salary increase was warranted, that increase would be made retroactive as well.

Serri’s June 2006 Discrimination Claim

On June 21, 2006, the same day the University offered to make an equity adjustment to Serri’s salary, Serri made a formal written complaint against Father Locatelli and Warren under Policy 311. Serri’s complaint against Father Locatelli alleged gender discrimination because she made $20,000 per year less than Ambelang; she also claimed the wage disparity was a violation of the federal Equal Pay Act of 1963. Serri’s complaint against Warren alleged that she felt threatened by him when he interfered with her investigation of a sexual harassment claim involving two employees of the facilities department in 2005.

Since it would have been inappropriate for Serri to investigate her own claims, the University hired an independent investigator for these claims. University representatives asked Ottoboni, who was then outside counsel for the University, for a recommendation. Ottoboni recommended Steven Manchester, an attorney with over 35 years of experience. The University then hired Manchester to investigate Serri’s claims.

On July 30, 2006, Manchester issued a written report in which he found that Serri’s claims were without merit and that neither Father Locatelli nor Warren had violated Policy 311. Serri appealed Manchester’s findings to the University’s board of trustees (Board). The Board held a hearing on September 12, 2006. Serri, who was represented by counsel, presented documents and argument in support of her appeal. The Board affirmed Manchester’s findings.

Serri’s Working Relationship with Veit

As assistant vice-president for human resources, McDonald regularly worked with outside counsel, including Veit. From time to time Veit, who practiced employment law, gave the University legal advice on matters that Serri handled, including the investigation of complaints and sexual harassment training. Veit often attended McDonald’s meetings with Serri. On September 26, 2006, McDonald sent Serri an e-mail suggesting that Veit attend their “regularly scheduled” biweekly meetings, to which Serri responded, “Brilliant idea, Molly! Let’s do it.”

Serri Discloses Her Failure to Prepare Affirmative Action Plans

Father Locatelli asked to meet with McDonald and Serri in mid-October to discuss Serri’s cases. To prepare for the meeting, Father Locatelli asked Serri to provide him with a written report by October 10, 2006, regarding the status of the cases she had handled between April and September 2006. The meeting was ultimately scheduled for October 13, 2006.

About a week before the meeting, on October 5, 2006, Serri filed discrimination claims against the University with the California Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC). The claims alleged (1) discrimination on the basis of sex, race, and national origin and (2) retaliation for complaining about discrimination and a violation of the Equal Pay Act of 1963.

On October 10, 2006, at one of her regular meetings with McDonald and Veit, Serri told McDonald that the University “had not had a defensible Affirmative Action Plan” for several years. Serri was upset that her assistant, Linda Jocewicz, had not been trained on certain computer software so she could access human resources data she needed to prepare the statistical analyses part of the AAP. Serri stated that during the entire time that she was the director of affirmative action, she never received the data she needed to complete the AAP’s. This was the first McDonald had heard of this and she immediately became concerned. McDonald agreed to provide Serri with whatever data she needed and Serri agreed to provide Veit with a copy of the most recent AAP. After Serri’s disclosure, Warren became concerned that the University could lose certain government funding because it did not have a defensible AAP.

Serri and Father Locatelli exchanged a series of e-mails in preparation for their October 13, 2006 meeting.- On October 12, 2006, Father Locatelli told Serri their meeting would include a review of her cases as of September 30, as well as the “current Affirmative Action [P]lan.” He asked her to “bring the current Affirmative Action [P]lan and all plans for the last 10 years” to the meeting.

Serri responded via e-mail, stating in part, “In the spirit of open communication I must say that I find the tone of your emails hostile.” She also stated, “To this date, I have never received the completed data we need to complete the Affirmative Action Plan, even though we have asked for it in the past numerous times. I am working on the current plan for this year. I will bring a draft and last year’s. The industry standard is to destroy the AAP[’]s that are over two years old.” Father Locatelli responded, “Please let me clarify so there is no misunderstanding. I am only trying to get the material that you promised to send me as well as information that I thought was readily available to you. My purpose is to be as prepared as possible in order to have a fruitful and effective meeting. [][] It is unclear how my email could be read as ‘hostile’ and I am looking forward to a productive meeting tomorrow.”

At the meeting on October 13, 2006, Serri produced two documents that were labeled “DRAFT . . . Affirmative Action Plan” covering the periods “February 2006 through January, [sic] 2007” and “November 1, 2006 through October 31, 2007.” The draft AAP’s that Serri produced in October 2006 were 25-page narrative reports that documented the University’s “policy of sustaining equal employment opportunity and implementing affirmative action efforts in conformity with” federal statutes and executive orders. Both documents contained multiple typographical and grammatical errors, incomplete sentences, and other errors. The University later learned that Serri created both draft AAP’s the day before the October 13, 2006 meeting. In deposition, Serri admitted that she prepared the two draft AAP’s the day before the meeting and that she did not inform either Father Locatelli or McDonald that she had done so.

At the October 13, 2006 meeting, Serri said (1) she was not an expert in AAP’s; (2) she needed to hire a consultant to help prepare the AAP’s because the applicable regulations had changed; and (3) her assistant had failed to obtain the data she needed to prepare the statistical analyses part of the AAP from human resources. Serri repeated her previous statement that the University had no current, defensible AAP; she also said the University was likely to be audited by the federal government and recommended the University hire Anna Maly, an AAP consultant, at a cost of $9,000, to revamp its AAP and to create a template for future AAP’s. Prior to this meeting, Serri had never told McDonald she did not feel competent to prepare the AAP or that she needed a consultant to help her prepare it.

In deposition, Serri testified that she started preparing AAP’s in 1992 and that she prepared an AAP each year between 1992 and 2000. Serri also testified that the last time she prepared the narrative portion of the AAP prior to October 2006 was in 2002 and that Jocewicz had prepared the statistical analyses for the AAP in 2005 and 2006, but not in 2004.

Father Locatelli, Warren, McDonald, Ottoboni, and Veit met on October 18, 2006, to discuss the problems related to the University’s AAP. They decided that McDonald would take over the responsibility of completing the 2006 AAP. On October 19, 2006, McDonald sent Serri an e-mail informing her that she (McDonald) would be “facilitate[ing] the coordination of this year’s Affirmative Action Plan” in light of Serri’s statements that (1) the AAP was “incomplete and indefensible,” (2) she was unable to “produce a defensible plan without hiring a consultant,” and (3) it was likely the University would be audited. The reassignment of duties was also based on McDonald’s review of the draft Plans Serri had prepared and the fact that the University had not had an AAP since 2003. McDonald asked Serri to provide the exhibits and the statistical analyses that were referenced in the draft AAP’s. She also informed Serri that she was asking University counsel to review the AAP.

Serri objected to the reassignment of her duties relating to the 2006 AAP in an e-mail dated October 20, 2006, stating that the preparation of the AAP was “one of those roles that define [her] position” and that she felt “compelled to protest this act to the EEOC as an act of retaliation.” She stated that (1) regulations governing AAP’s had changed; (2) since 2004, she had needed to hire a consultant to prepare an AAP that was defensible and complete in light of the new regulations; (3) Father Locatelli never gave her permission to hire a consultant; and (4) McDonald’s predecessor had denied her “essential data” and computer training needed to complete past AAP’s. Serri also blamed the problem with the AAP’s on Father Locatelli’s “unwillingness to communicate” with and supervise her for six years.

Serri’s October 2006 Claims

On October 20, 2006, Serri lodged a second complaint under Policy 311, in which she claimed that McDonald’s assumption of responsibility for the AAP was an act of retaliation for Serri’s prior Policy 311 and EEOC claims. On or about October 24, 2006, Serri filed a second claim against the University with the DFEH, which was forwarded to the EEOC, in which she claimed that taking away her “essential job function” of preparing the AAP was “a demotion” that was retaliatory in nature.

The University once again asked Ottoboni to recommend someone to investigate Serri’s second Policy 311 claim. Since Manchester had found against Serri on her first claim and Serri had criticized his investigation, Ottoboni recommended the University retain Mark Fredkin, an attorney with over 25 years’ experience, to investigate Serri’s second claim. The University hired Fredkin. Linda MacLeod, an attorney at Fredkin’s firm, assisted with the investigation.

On October 23, 2006, Serri told McDonald that she no longer wanted Veit attending their meetings. But McDonald decided that Veit would continue to attend their meetings so they could discuss Serri’s cases and projects with Veit present. She also believed “it was important to have another person present for the conversations with Ms. Serri in light of past disagreements about what had transpired in earlier discussions.” Veit attended only two or three more of Serri’s meetings with McDonald, all in the fall of 2006. On November 13, 2006, Serri added an allegation to her second Policy 311 claim that Veit’s presence at her meetings with McDonald was an act of retaliation against her.

Ottoboni and Veit Obtain Employment With the University

In 2006, the University decided to hire a full-time in-house general counsel and offered Ottoboni the job. The University announced Ottoboni’s appointment as general counsel in the fall of 2006 and he started working directly for the University on January 1, 2007.

In the latter part of 2006, McDonald recommended the University hire an in-house attorney for the human resources department who would report directly to McDonald. Warren approved and the University advertised the position in December 2006. Veit applied and was offered the job; she started working directly for the University in late January 2007. Serri’s duties did not change after Veit was hired. Seiri’s job and Veit’s job were and remained separate and distinct.

Results of Second Investigation

On January 17, 2007, Fredkin and MacLeod issued a report in which they concluded that Serri had failed to meet her burden of proof on her retaliation claims. Serri appealed the decision to the Board and on February 13, 2007, the Board affirmed the investigators’ findings.

The University Terminated Serri’s Employment

In October 2006, Warren recognized the seriousness of Serri’s failure to complete the AAP’s. He believed preparation of the AAP’s was a “critical aspect” of Serri’s job and was concerned that the University could lose certain government funding because it did not have an AAP in place. Notwithstanding his immediate concerns, Warren decided not to make any decisions regarding Serri’s employment until after the Policy 311 investigation and appeal were completed.

After the appeal of Serri’s second claim was completed, Warren decided to terminate Serri. He made the decision himself instead of deferring to McDonald because he believed “Serri’s misconduct to be sufficiently grave as to require [his] personal intervention.” On March 7, 2007, Warren hand delivered a letter to Serri, advising her that she was being terminated for three reasons: (1) her “failure to prepare, develop and implement the University Affirmative Action Plan for years 2003-2004, 2004-2005, and 2005-2006”; (2) her “failure to disclose to [her] supervisors the nonexistence of the University Affirmative Action Plans” for those years; and (3) her “misrepresentations related to the Affirmative Action Plans.” Warren considered these acts to be “gross misconduct sufficient to warrant [Serri’s] immediate termination” without corrective action. When he delivered the letter, Warren was accompanied by Ingrid Williams, an employee of the human resources department, who helped Serri gather her personal belongings.

After the University terminated Serri, it hired Deborah Hirsch, a woman from outside the University who was the same age as Serri, as the director of affirmative action. Hirsch started working for the University in October 2007.

Declaration of Linda Campbell

In declarations, Linda Campbell, who had been the University’s director of sponsored projects for 12 years, stated that virtually all grant and contract applications the University submits to federal, local and state governments require the University to certify certain things, including that the University has completed its annual AAP. Prior to 2002, Serri personally signed the AAP certifications. But after Serri’s office was moved to another building in 2002, Campbell and Serri agreed that Campbell would sign the certifications. Campbell assumed Serri would notify her promptly if there was any reason she could not sign the certification forms. Campbell talked to Serri about the certifications two or three times a year; they communicated about them via e-mail and Campbell occasionally provided Serri with copies of documents the University was being asked to sign. From 2003 until 2006, the University certified on multiple occasions that it was in compliance with regulations requiring AAP’s. As examples, Campbell attached copies of two grant applications the University submitted to two different federal agencies in December 2005 and March 2006, in which the University certified that it had developed an AAP as required by the rules and regulations of the United States Secretary of Labor. Both applications were signed by Don Dodson, the University’s vice-provost for academic affairs. One application requested grant funding in excess of $15 million. Campbell declared that during the relevant timeframe, Serri never told her the University did not have an AAP.

On September 21, 2006, Campbell sent Seni an e-mail in which she wrote that the City of San José wanted a copy of the University’s AAP “as part of our award paperwork for this year.” Campbell asked Serri whether the University released its AAP. Serri responded that the University could not release its AAP because “it has proprietary, sensitive information that can compromise the University in case we get sued by job applicants. . . . We have never released it.” Serri did not tell Campbell the University did not have an AAP and had not had one for three years. Serri offered to send Campbell “a summarized, sanitized version” of the AAP, but stated that “it is still not a good idea.” In deposition, Serri testified that the “sanitized version” she mentioned in her e-mail was the narrative summary, like the draft AAP’s she prepared in October 2006. Serri also testified that she knew people in the grants office were certifying that the University had an APP when in fact no AAP had existed for three years.

Procedural History

Seni filed her original complaint on June 20, 2007. The operative pleading is Serri’s fourth amended complaint, which was filed in July 2008, after the trial court sustained defendants’ demurrers to previous complaints with leave to amend.

The fourth amended complaint (hereafter sometimes “complaint”) alleges causes of action against the University for employment discrimination, tortious discharge, violation of the California Equal Pay Act (Lab. Code, § 1197.5), breach of an implied contract of continued employment, bad faith, and retaliation in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940, subd. (h)). The complaint asserts causes of action against the University, Father Locatelli, McDonald, and Warren for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The complaint includes a cause of action for harassment (Gov. Code, § 12940, subd. (j)) against the University, Father Locatelli, McDonald, and Veit. Finally, the complaint alleges a cause of action against Ottoboni and Veit for interference with prospective economic advantage.

The defendants were divided into two groups represented by two separate lawyers: (1) the University and Father Locatelli were represented by Attorney Allen Ruby and (2) Warren, McDonald, Ottoboni, and Veit were represented by Attorney Sonya Winner. We shall hereafter refer to Warren, McDonald, Óttoboni, and Veit collectively as the “Individual Defendants” and to all defendants collectively as “Defendants.” Defendants answered the fourth amended complaint in August 2008.

On April 12, 2011, the court set the case for trial on September 6, 2011. On May 17, 2011, Warren, McDonald, Ottoboni, and Veit each filed and served a motion for summary judgment or, in the alternative, summary adjudication. The following day (May 18, 2011), the University and Father Locatelli filed and served their joint motion for summary judgment or summary adjudication in the alternative. All five motions were scheduled for hearing on August 2, 2011.

On July 8, 2011, Serri made an ex parte application to continue both the hearing on the motions for summary judgment and the trial date for four weeks so she could complete additional discovery she needed to oppose the motions. After giving the Defendants an opportunity to file written opposition and holding a hearing on Serri’s application, the court granted Serri’s requests in part. The court continued the hearing on the motions for summary judgment from August 2, 2011, to August 25, 2011; extended the deadline for Serri to file opposition to the motions from July 19, 2011, to August 11, 2011; but denied Serri’s request to continue the trial date.

On August 11, 2011, Serri filed her opposition to the motions for summary judgment, which consisted of a single memorandum of points and authorities, five separate statements (one in response to each of Defendants’ five separate statements), the declarations of her counsel and of John Fox (an expert on AAP’s), and 408 exhibits. Although Serri’s evidence included excerpts from her deposition, she did not file a declaration in support of her opposition. Regarding the employment discrimination claims, Serri asserted that the stated reasons for her termination were false and that there was evidence of discriminatory animus.

On page 1 of her memorandum of points and authorities in opposition to the motions, Serri requested a further continuance of the summary judgment motions “to obtain the essential remaining discovery she needs to oppose [the] motions.” Serri stated that she needed to depose Linda Campbell and a person most knowledgeable from the University, asserted that the University had refused to produce those witnesses, and argued that she could not “adequately oppose the motions without that discovery.”

On August 19, 2011, Defendants filed papers in reply to Serri’s opposition to the motions for summary judgment, including memoranda-of points and authorities, separate statements in reply to Serri’s opposition, and "objections to Serri’s evidence. Defendants also opposed Serri’s request for a second continuance, arguing that Serri had failed to comply with the procedural requirements of Code of Civil Procedure section 437c, subdivision (h), since she had not submitted any affidavits or declarations supporting her continuance request and had not submitted any evidence that the Defendants had refused to produce any witnesses.

On August 23, 2011, two days before the hearing, Serri’s counsel submitted additional points and authorities and a declaration supporting his second request for a continuance.

On August 24, 2011, the day before the hearing on the motions for summary judgment, Serri filed written responses to the Defendants’ objections to her evidence. Later that day, the court issued a written tentative ruling sustaining Defendants’ objections to Serri’s evidence and granting each of the motions for summary judgment. Serri objected to the tentative ruling and requested oral argument.

On August 25, 2011, at the hearing on the motions for summary judgment, Serri filed an additional 37 pages of written objections to Defendants’ evidence. She also filed a written statement of disqualification objecting to having Judge Mark Pierce hear the motions for summary judgment pursuant to section 170.3, on the grounds that he had failed to disclose that (1) he was a graduate of the University, and (2) he had made financial contributions to the University. After conducting a hearing on Serri’s disqualification request, the court denied it as untimely and then heard argument on the motions for summary judgment.

On August 30, 2011, the court issued its order on the motions for summary judgment. The court denied Serri’s second request for a continuance to do additional discovery, overruled Serri’s objections to Defendants’ evidence, sustained Defendants’ objections to Serri’s evidence, and granted each of the motions for summary judgment. Although it sustained Defendants’ objections to Serri’s evidence, the court stated: “Regardless, after a comprehensive review of all of the evidence submitted by Plaintiff, the Court finds that even if it found Plaintiff’s evidence to be admissible, it would not impact and/or change any of the rulings” on the motions for summary judgment.

On August 30, 2011, the court entered judgment in favor of Defendants, determined that Defendants were prevailing parties, and awarded Defendants their costs of suit. On September 2, 2011, the court issued a written order striking Serri’s statement of disqualification.

On September 12, 2011, Serri filed a petition for writ of mandate in this court, in which she requested an order directing the trial court to vacate its order striking her statement of disqualification. That same day, Serri also filed a notice of motion for new trial. Defendants opposed the writ petition and the motion for new trial. Defendants also filed a memorandum of costs, which Serri challenged with a motion to tax. In November 2011, the trial court denied Serri’s motion to tax, awarded Defendants $50,723.41 in pretrial costs, and denied Seni’s new trial motion. Later, this court denied Serri’s petition for writ of mandate.

Discussion

Serri challenges the order granting summary judgment on procedural grounds and on the merits. Procedurally, she argues that the court erred when it (1) denied her section 170.3 motion to disqualify Judge Pierce; (2) denied her second motion for a continuance of the hearing on the summary judgment motions; and (3) sustained Defendants’ objections to her evidence. On the merits, Serri challenges the summary adjudication of each of her causes of action and, thus, the orders granting summary judgment. We begin by addressing Serri’s procedural challenges.

I., II.

IH. Defendants’ Objections to Serri’s Evidence

Serri contends the trial court abused its discretion when it sustained all of Defendants’ objections to the evidence she submitted in opposition to the motions for summary judgment. Acknowledging the court’s statements that it conducted “a comprehensive review” of all of her evidence, and even if it had found her “evidence to be admissible, it would not impact and/or change any of the rulings,” Serri argues that the court committed reversible error when it sustained Defendants’ objections to her evidence.

A. Background

Serri’s evidence in opposition to the motions for summary judgment consisted of the declarations of her counsel, Samuel Komhauser, and an expert witness, John Fox. Komhauser attached 408 exhibits to his declaration, which consume 1,374 pages of the record on appeal.

Both the University and the Individual Defendants filed written objections to Serri’s evidence. The University’s objections were 22 pages long; it made 124 objections to 116 of Serri’s exhibits and 48 objections to statements in Fox’s declaration. The Individual Defendants’ objections were 40 pages long; they made 214 objections to almost every one of Serri’s exhibits. They also objected to Fox’s declaration.

Serri filed a 47-page response to the University’s objections. The record contains a similar 63-page document that appears to be a template for responding to the Individual Defendants’ objections, but the column entitled “Reasons Why Defendants’ Objections are Without Merit” in that document is blank.

One of Defendants’ objections was that Serri’s evidence included “nearly 200 exhibit tabs for which no exhibits were submitted.” In other words, although there were tabs for 408 exhibits, almost half of those tabs did not contain any evidence. The Individual Defendants identified those exhibits by number and also objected to a subset of those exhibits that Serri cited to in her opposition papers. For example, Serri cited exhibits 21, 271, 272, 352, and 378 in her points and authorities, even though no evidence was submitted under those exhibit tabs. At the hearing, Serri’s counsel explained that the 408 exhibits were from his trial book and that he told his secretary to take out the exhibits that he was not using to oppose the summary judgment motion, but his secretary forgot to remove the exhibit tabs.

The University objected to a number of Serri’s exhibits on the grounds of relevance, arguing that while they were in the 1,374 pages of material Serri submitted, they were not cited anywhere in Serri’s opposition papers. Defendants objected that many of the exhibits lacked foundation because they were not properly authenticated, that many were inadmissible hearsay, and others were irrelevant because they did not support the proposition for which they were cited.

In accordance with California Rules of Court, rale 3.1354(c), Defendants filed 71 pages of proposed orders on their objections. Rather than use the proposed orders, the court ruled on the objections in its order granting summary judgment. The court sustained all of Defendants’ objections, stating: “Although Plaintiff’s evidence contains over 400 exhibit tabs, nearly 200 exhibit tabs fail to contain any exhibits and many of the other exhibits lack foundation, are inadmissible hearsay, and/or are irrelevant as they are not cited in Plaintiff’s opposition. With regard to the declaration of John Fox, Esq., many of the statements contained therein are not factually supported and constitute improper expert and/or legal opinion. Regardless, after a comprehensive review of all the evidence submitted by Plaintiff, the Court finds that even if it found Plaintiff’s evidence to be admissible, it would not impact and/or change any of the rulings discussed below.”

B. Standard of Review

According to the weight of authority, appellate courts “review the trial court’s evidentiary rulings on summary judgment for abuse of discretion. [Citations.] As the part[y] challenging the court’s decision, it is [Serri’s] burden to establish such an abuse, which we will find only if the trial court’s order exceeds the bounds of reason.” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679 [69 Cal.Rptr.3d 888] (DiCola); but see Reid, supra, 50 Cal.4th 512, 535 [Supreme Court noted issue but concluded that it need “not decide generally whether a trial court’s ruling on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo”] and Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4 [100 Cal.Rptr.3d 296] (Nazir) [observing that the standard of review is unsettled and assuming, without deciding, that the abuse of discretion standard applies].)

This court has stated: “In determining whether a triable issue was raised or dispelled, we must disregard any evidence to which a sound objection was made in the trial court, but must consider any evidence to which no objection, or an unsound objection, was made. (See Reid . . . , supra, 50 Cal.4th 512, 534; ... § 437c, subds. (b)(5), (c), (d).) Such evidentiary questions, however, are subject to the overarching principle that the proponent’s submissions are scrutinized strictly, while the opponent’s are viewed liberally.” (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957 [118 Cal.Rptr.3d 34].)

C. Objections to Serri’s Documentary Exhibits

Citing Nazir, Seni argues that the trial court’s “blanket and baseless grant” of all of Defendants’ evidentiary objections was an abuse of discretion.

The plaintiff in Nazir, who was of Pakistani ancestry, sued his employer (United Airlines) and a supervisor for discrimination, retaliation, harassment, and other claims after he was terminated from his employment. (Nazir, supra, 178 Cal.App.4th at pp. 248-249.) The defendants moved for summary judgment; their reply papers included 764 objections to the plaintiff’s evidence, set forth in 324 pages. (Id. at pp. 249, 254.) The trial court overruled one and sustained 763 of the objections. (Id. at p. 255.) On appeal, the plaintiff acknowledged that some of the objections could have been properly sustained, but argued that the order sustaining all but one of the objections was error. The appellate court agreed and held that the trial court abused its discretion by making a blanket ruling sustaining all but one of the defendants’ objections. (Id. at p. 254.)

The court stated that “ ‘a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections . . . .’ ” (Nazir, supra, 178 Cal.App.4th at p. 255.) Although the trial court had “ ‘ruled,’ however conclusorily, that all objections save one were sustained,” the appellate court held that the trial court’s blanket ruling was “hardly a ruling, as it could not provide any meaningful basis for review.” (Id. at p. 255.) The court assumed, without deciding, that the abuse of discretion standard applied, and stated, “[W]e have no hesitancy in holding that the sustaining of all but one of defendants’ 764 objections was an abuse of discretion. Put otherwise, there is no way that the trial court could properly have sustained 763 objections ‘ “ ‘guided and controlled ... by fixed legal principles.’ ” ’ [Citation.]” (Ibid.)

The Nazir court also reviewed the objections and concluded that most were either unsupported by any rule or were patently frivolous. (Nazir, supra, 178 Cal.App.4th at pp. 255-257.) The court observed that (1) some of the “objections did not even assert any basis for the objection”; (2) some of the “objections were to [the] plaintiff’s testimony about his dates of employment, his religion, his skin color, and his national origin”; (3) “[o]ver 250 of the sustained objections failed to quote the evidence objected to, in violation of California Rules of Court, rule 3.1354”; (4) 27 of the objections “were to [the] plaintiff’s brief, not his evidence”; and (5) “many of the objections were frivolous.” The court held that all of the plaintiff’s admissible evidence was properly before it and that the admissible evidence created triable issues of fact precluding summary judgment. (Id. at pp. 256, 257, 264; accord, Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447-1449 [149 Cal.Rptr.3d 52] (Palms) [blanket ruling summarily sustaining all of the plaintiff’s 39 objections to the defendant’s evidence, without reasoning, was an abuse of discretion].)

Serri’s brief provides little help in addressing the propriety of the trial court’s ruling on Defendants’ objections to Serri’s evidence. Unlike Nazir, Serri does not provide any examples of specific objections that the trial court sustained that were erroneous or unreasonable. After citing Nazir, Serri asserts, “[m]oreover, as pointed out in Plaintiff’s [47-page] written responses to Defendants’ evidentiary objections . . . , Defendants’ objections were without merit and it was erroneous to sustain them.” It is inappropriate for an appellate brief to incorporate by reference arguments contained in a document filed in the trial court. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup)) Such practice does not comply with the requirement that an appellate brief “support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) We shall therefore disregard Serri’s effort to incorporate by reference arguments she made below in response to Defendants’ objections to her evidence. (Soukup, at p. 294, fn. 20.)

The only other argument Serri makes regarding her documentary evidence is the contention that the court erred when it sustained Defendants’ objections that her evidence lacked foundation. Serri does not, however, discuss this point in the context of any specific exhibit or exhibits. Serri argues that almost all of her exhibits were produced by Defendants in response to her document requests and that “by producing their documents in discovery, [Defendants] have admitted their genuineness.” The legal authority Serri cites, however, neither supports nor addresses her contention.

The Individual Defendants concede that many of Serri’s documents bear Bates-stamped numbers indicating they were produced by Defendants. They contend, however, that dozens of exhibits consist of handwritten notes by unidentified authors and other items that require additional authentication. They argue", “Not every document that comes out of an opposing party’s files is automatically admissible against even that party, much less as to all others,” and that more is required to establish admissibility. We agree.

Documents obtained in discovery in response to a request for production of documents may be used to support or oppose a motion for summary judgment, but must be presented in admissible form. This means the evidence must be (1) properly identified and authenticated, (2) admissible under the secondary evidence rule, (3) nonhearsay or admissible under some exception to the hearsay rule, and (4) a complete record, not selected portions of the document. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) If 10:168 to 10:169, pp. 10-70 to 10-71 (rev. # 1, 2013).) Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400; see Evid. Code, § 1410 et seq. for methods of authenticating documents.)

Serri’s only effort to authenticate her exhibits was Komhauser’s declaration that the “exhibits attached hereto are true and correct copies of the originals or excerpts of the originals or copies of documents produced by Defendants in this action or excerpts of the originals of depositions or transcripts of investigations in this case.” Since the Individual Defendants have briefed the issue, we shall address the propriety of the trial court’s order sustaining Defendants’ objections to the handwritten notes.

Serri’s evidence includes more than 20 exhibits that consist of handwritten notes (see, e.g., exhibits 38, 43, 68, 75, 76). According to Serri, these are McDonald’s notes. However, none of the handwritten notes are signed and there is no evidence they were written by McDonald. To authenticate the notes, Serri could have propounded requests for admission asking McDonald to admit their authenticity and to admit that she wrote them (§ 2033.010). Serri could also have asked McDonald to authenticate the notes when she took McDonald’s deposition. There is no evidence in the record that she did either of these things. Furthermore, Defendants did not rely on the notes in their' own submission. (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1526-1529 [53 Cal.Rptr.3d 700] [trial court erred in sustaining authentication, foundation, and other objections to deposition excerpts in the plaintiff’s evidence where the moving parties relied on the same depositions].) In addition, many of the notes, to the extent we can decipher them, appear to document conversations with other persons and are therefore hearsay. Since Serri did not meet her burden of demonstrating the admissibility of the handwritten notes, the trial court did not err in sustaining objections to them.

As for the remainder of Serri’s documentary exhibits, this case is distinguishable from Nazir since Defendants’ objections do not suffer from the same defects as those in Nazir. Serri fails to cite examples of objections that were frivolous and many objections are supported by rules of evidence. On the other hand, our review of the record discloses a problem with the trial court’s ruling: some of the exhibits Defendants objected to were identical to documents Defendants had submitted in support of their motions for summary judgment (compare Serri’s exhibits 66, 124, 181 with Individual Defendants’ exhibits L, R, and BB). The Individual Defendants objected to these exhibits on authentication, foundation, hearsay, and relevance grounds; the University objected that one was hearsay and another was irrelevant. Since Defendants had relied on this very same evidence, there was no merit to these objections and they should not have been sustained.

We also look to Reid for guidance. The defendant employer in Reid had raised more than 175 separate objections to the plaintiff employee’s evidence opposing summary judgment. (Reid, supra, 50 Cal.4th at p. 533.) Rather than rule on the objections, the trial court made what was known as a Biljac ruling and stated, “ ‘The Court declines to render formal rulings on evidentiary objections. In ruling, the Court relied on competent and admissible evidence pursuant to Biljac Associates v. First Interstate Bank [(1990)] 218 Cal.App.3d 1410, 1419-1429 [267 Cal.Rptr. 819].’ ” (Reid, at p. 533.) The Reid court disapproved of Biljac “to the extent it permits the trial court to avoid ruling on specific evidentiary objections.” (Reid, at p. 532 & fn. 8.) The court held that the “trial court must rule expressly on those objections. [Citation.] If the trial court fails to rule, the objections are preserved on appeal.” (Id. at p. 532, fn. omitted, citing Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th, 633, 642-643 [15 Cal.Rptr.3d 587] [trial courts have a duty to rule on evidentiary objections presented in proper form].)

The Supreme Court “recognize[d] that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical. Trial courts are often faced with ‘innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become.’ [Citation.] Indeed, the Biljac procedure itself was designed to ease the extreme burden on trial courts when all ‘too often’ ‘litigants file blunderbuss objections to virtually every item of evidence submitted.’ [Citations.] To counter that disturbing trend, [the Supreme Court] encourage[d] parties to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion. In other words, litigants should focus on the objections that really count. Otherwise, they may face informal reprimands or formal sanctions for engaging in abusive practices. At the very least, at the summary judgment hearing, the parties—with the trial court’s encouragement—should specify the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary judgment motion.” (Reid, supra, 50 Cal.4th at pp. 532-533, fns. omitted, italics added.)

As we have noted, another issue in Reid was the effect of the trial court’s Biljac ruling and whether it resulted in a waiver of the objections and, if not, whether the objections should be deemed to have been sustained or overruled. (Reid, at pp. 533-535.) The court held that “if the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal.” (Id. at p. 534.)

The trial court’s ruling here is different from the Biljac ruling that was disapproved of in Reid, but is equally problematic. The trial court in Reid declined to rule on the evidentiary objections, but stated that it was relying only “ ‘on competent and admissible evidence.’ ” (Reid, supra, 50 Cal.4th at p. 533.) In this case, the court ruled on the objections—its blanket ruling sustained all of the objections and observed that many of the exhibits lacked foundation, were inadmissible hearsay, or were irrelevant because they were not cited in Serri’s opposition. This blanket ruling was “hardly a ruling,” provided no meaningful basis for review, and could be treated as a failure to rule. (Nazir, supra, 178 Cal.App.4th at p. 255.) The ruling was similar to trial court rulings under the Biljac procedure that was disapproved of in Reid since the result in both situations is a failure to rule on the objections.

After the court sustained all of Defendants’ objections, it stated that even if Serri’s evidence was admissible, it would not impact or change any of the court’s rulings. This statement does not provide any more guidance than a Biljac ruling. Defendants objected to all but 13 of Serri’s 408 exhibits. Under the trial court’s ruling, then, either most of Serri’s evidence was excluded or all of it was admitted.

Given the number of objections and the fact that some were sustained in error, we follow Nazir and hold that the trial court abused its discretion by issuing a blanket ruling on Defendants’ objections. (Nazir, supra, 178 Cal.App.4th at p. 255.)

Finally, “[i]n regard to whether the evidentiary ruling was harmless, an erroneous evidentiary ruling requires reversal only if ‘there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]’ ” (Palms, supra, 210 Cal.App.4th at p. 1449; see Evid. Code, § 354.) In this case, the court’s error in issuing a blanket evidentiary ruling does not change the outcome of the motions because Serri’s admissible evidence does not create a triable issue of material fact.

We have already addressed Defendants’ objections to the handwritten notes and held that the court properly sustained them. Rather than discuss any other exhibits here, we will discuss the admissibility of other evidence that Serri relies on in the balance of this opinion as it relates to the substantive issues she raises on appeal.

D. Objections to John Fox’s Declaration

On appeal, Serri relies on the portion of Fox’s declaration in which he opines that the University would not suffer any adverse consequences as a result of not having an AAR Without deciding whether the trial court erred when it sustained Defendants’ objections to this portion of Fox’s declaration, we shall assume this portion of the declaration is admissible and will consider it in our review on appeal.

IV. The Court Properly Granted Summary Judgment

We begin by summarizing the legal principles that govern motions for summary adjudication and summary judgment in general. We then discuss rules that are unique to summary adjudication and summary judgment in employment cases.

A. Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089] (Guz).) The trial court’s ruling on a motion for summary adjudication, like that on -a motion for summary judgment, is subject to this court’s independent review. (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972 [103 Cal.Rptr.2d 672, 16 P.3d 94].) In determining whether summary judgment was proper, we analyze the propriety of granting summary adjudication with regard to each of Serri’s causes of action.

In undertaking our independent review, we apply the same three-step analysis used by the trial court. First, we identify the issues framed by the pleadings. Second, we determine whether the moving party has established facts justifying judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887 [41 Cal.Rptr.2d 740].)

In performing our review, we view the evidence in a light favorable to the losing party (Serri), liberally construing her evidentiary submission while strictly scrutinizing the moving party’s own showing and resolving any evidentiary doubts or ambiguities in the losing party’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 [107 Cal.Rptr.2d 617, 23 P.3d 1143].)

B. General Rules Regarding Summary Judgment and Summary Adjudication

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (§ 437c, subd. (f)(1).) The statute thus authorizes motions for summary adjudication that “reduce the costs and length of litigation” by limiting the substantive areas of dispute. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1852 [16 Cal.Rptr.2d 458]; see Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [97 Cal.Rptr.2d 842].)

Summary judgment motions serve a similar purpose, namely “to identify those cases in which there is no factual issue which warrants the time and cost of factfinding by trial.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735 [35 Cal.Rptr.2d 181] (Martin).) Thus, the object of both procedures is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve their dispute. (Aguilar, supra, 25 Cal.4th at p. 843.)

Summary adjudication motions are “procedurally identical” to summary judgment motions. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290 [38 Cal.Rptr.3d 316].) A summary judgment motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the “action has no merit or that there is no defense” thereto. (Id., subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Id., subds. (o), (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (§ 437c, subd. (p)(2); see-Aguilar, at p. 850.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67 [15 Cal.Rptr.2d 598].) There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 845.)

C. Summary Judgment/Summary Adjudication in Employment Cases

Both federal and state laws prohibit employers from discriminating against employees on the basis of race, sex, or ethnic origin. (Gov. Code, §§ 12940, subd. (a), 12941, subd. (a); 42 U.S.C. § 2000e et seq. [title VII of the Civil Rights Act of 1964 (Pub.L. No. 88-352 (July 2, 1964) 78 Stat. 241)].)

In cases alleging employment discrimination, we analyze the trial court’s decision on a motion for summary judgment using a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817]. (See, e.g., Guz, supra, 24 Cal.4th at pp. 354-355; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111 [16 Cal.Rptr.3d 717] (Reeves).) This test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354.)

At trial, under the first step of the McDonnell Douglas framework, the plaintiff may raise a presumption of discrimination by presenting a “prima facie case,” the components of which vary depending upon the nature of the claim, but typically requi